Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Folau [2020] NSWCATAD 287 Hearing dates: 01 September 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member Decision: Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed. Catchwords: HUMAN RIGHTS — Tribunals, commissions and other authorities — NCAT — whether leave required for complaint to proceed — principles applying to grant of leave HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — homosexual vilification WORDS AND PHRASES — meaning of "vexatious" in s 92 of the Anti-Discrimination Act 1977 (NSW) Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Jones v Trad [2013] NSWCA 389 Langley v Niland & Anor (1981) 2 NSWLR 104 New South Wales v Burns [2018] HCA 15 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Sunol v Collier and anor (No 2) [2012] NSWCA 44 Texts Cited: Rugby Australia, Code of Conduct - Players Category: Procedural and other rulings Parties: Garry Burns (Applicant) Israel Folau (Respondent) Representation: Counsel: Y Sharif SC (Respondent) Solicitors: Applicant (Self Represented) DWF Australia (Respondent File Number(s): 2020/00233668 Publication restriction: Nil REASONS FOR DECISION 1. In 2019, former Wallaby, Mr Israel Folau, generated significant public controversy by making several comments said to vilify members of the LGBTI community. 2. In August 2019, Rugby Australia decided to terminate its contract of employment with Mr Folau on the grounds that he had failed to comply with its Players' Code of Conduct, including "respectful use of social media". Mr Folau commenced legal proceedings against Rugby Australia. On 4 December 2019, the parties reached agreement and issued a public statement, which is set out at [26] below. 3. On 2 December 2019, Mr Garry Burns lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (respectively, "the President" and "the Board"), alleging that Mr Folau had vilified homosexual people by posting comments on Instagram and Twitter and in a sermon delivered to the congregation of the Truth of Jesus Christ Church, Kenthurst, NSW. 4. Mr Burns contended that Mr Folau's comments incited hatred toward and contempt for homosexual people by encouraging that they be shunned and by portraying homosexuality as "sick, perverted or dirty". In addition, Mr Burns contended that Mr Folau's comments sought to link homosexuality and same sex marriage with drought and bushfires. 5. Since 2002, Mr Burns has made numerous complaints to the Board alleging that various individuals have vilified him, or homosexuals at large, in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). Many of those complaints have been found proven by the NSW Civil and Administrative Tribunal (NCAT) and one of its predecessors, the NSW Administrative Decisions Tribunal (ADT). 6. After accepting and investigating the Complaint, the President decided to exercise the discretion conferred by s 92 of the Act to decline the Complaint on the ground that it was vexatious and amounted to an abuse of process. As a consequence, the Complaint cannot proceed without leave of the Tribunal: s 96(1) of the Act. 7. Mr Burns urges the Tribunal to grant leave. Mr Folau opposes leave being granted. 8. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed. Statutory framework and principles governing the grant of leave 1. A person may make a complaint to the President on their own behalf as well as on behalf of another person, alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act. 2. A vilification complaint cannot be made unless each person on whose behalf the complaint is made has the characteristic that was the ground for the conduct that constitutes the alleged contravention or claims to have that characteristic and there is no sufficient reason to doubt that claim: s 88. 3. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. The President may decline the complaint or part of the complaint, if, at any stage of the investigation the President is satisfied that the complaint is vexatious, among other things: s 92(1)(a)(i). 4. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act. 5. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act. 6. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60]. Unlawful homosexual vilification 1. Section 49ZT of the Act makes homosexual vilification unlawful: 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 1. The Act defines "public act" to include" (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and … (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 1. Section 49Z states: ... A reference in this Part to a person's homosexuality includes a reference to the person being thought to be a homosexual person, whether he or she is in fact a homosexual person or not. … President declines the Complaint 1. In a letter dated 15 April 2020, the President notified the parties of her decision to decline the Complaint. The President stated that she was satisfied that the Complaint was vexatious and amounted to a "flagrant abuse of process". She stated that Mr Burns was not pursuing the Complaint "to avail himself of the processes afforded under the Act but for a collateral purpose, as a means to pressure the Respondent to settle with him". The President stated that in deciding to decline the Complaint, she had regard to several factors, including: 1. Mr Burns' actions in issuing a media release announcing that his complaint had been accepted by the Board. In that release, Mr Burns stated that he had raised more than $10,000 in a "GoFundMe fighting fund" and issued a warning to Mr Folau and a member of the NSW Parliament: "Fellas, I'm just like a vicious Alsatian dog. One I gab (sic) hold of the lea. I don't let go until the bone is bare and bloodied - One wavy (way?) or another I will get that remedy from Mr Folau, even if it takes me years in court". 1. Mr Burns' disregard of the confidential nature of the processes of the Board and publicly communicating the lodgement and acceptance of his complaint to the media and third parties. The President stated that this demonstrates that Mr Burns "does not intend to work within the boundaries and principles underpinning the confidential complaint handling and conciliation processes of [the Board]". 2. Mr Burns' "continuous, inappropriate and threatening sending of emails" to Mr Folau's solicitors. 3. The threat made by Mr Burns to the President that if she were to dismiss the Complaint, he would allege that she would be "aiding and abetting the unlawful vilification of a marginalised group within the NSW community - the homosexual community". Meaning of "vexatious" 1. In Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5, an Appeal Panel of the ADT considered the meaning of the word vexatious in the now-repealed s 111 of the Act, which gave the Tribunal the power to dismiss a Complaint on the ground that it is "frivolous, vexatious, misconceived or lacking in substance". The Appeal Panel noted at [31] that the word "vexatious" can relate to the objective character of the complaint, where for example the complaint has no foundation, and, in addition, to the subjective character of the complaint. The Appeal Panel pointed out that the motives of the complainant may be relevant in determining whether a complaint is vexatious, referring to the oft-cited explanation given by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 that proceedings will be vexatious if: "1. [T]hey are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. [T]hey are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. [I]rrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." 1. Proceedings might constitute an abuse of process if they are brought for an improper purpose: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [14]-[15] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ). The High Court referred at [14] to the explanation given in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74-75, by Gaudron J: Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'. (Citations omitted) The comments the subject of the Complaint 1. The conduct the subject of the Complaint consists of three sets of comments made in 2019 by Mr Folau on social media and in a sermon (collectively "the Comments"). 2. The first comment was in the form of a meme posted on Instagram on 10 April 2019: 1. The second comment was posted later that day on Twitter: 1. The third comment was contained in a sermon delivered by Mr Folau to the congregation of the Truth of Jesus Christ Church on 17 November 2019. The Church posted the transcript of the sermon on its Facebook page. The following is an extract from that transcript: The message that I want to speak about today is mainly for the people that are outside within the world. I've been looking around at the events that's been happening in Australia this past couple of weeks, ah with all the natural disasters; the bush fires; the droughts and all these things that are currently happening. … I just want to say the events that's happening here in Australia, just in the last couple of years. God's Word says for a man and a woman to be together; one man and one woman in the covenant of marriage to be together. Now the world, and speaking to Australia, right now. They come and changed this law. So they changed the law, they changed the ordinance. They've changed that law, and now have legalised same-sex marriage. Now those things are okay in society; going against the laws of what God says. Abortion, it's okay now to murder and kill infants; unborn children – and they deem that to be okay. This here, this scripture here is talking to Australia, which is what God's speaking to those that are listening, that they may open their hearts to receive this. You have changed the law and ordinance of these things. Look at how rapid these bush fires, these droughts, all these things they've come in a short period of time. Do you think it's a coincidence or not? God is speaking you guys, Australia, you need to repent, turn, take these laws and turn it back into following what is right by God, what God says in His word. It's says "therefore hath the curse devoured the earth, and they that dwell therein are desolate: therefore the inhabitants of the earth are burned, and few men left." What you see right now out in the world, it's only a little taste of what God's judgement's comin'. It's not even a big thing and now the news are saying that these bush fires are the worst they've ever seen in Australia. The worst. They haven't even seen anything; we look back at what God done to Sodom and Gomorrah, and rained fire and brimstone from heaven and destroyed that city because of the sin that they were living in. God is speaking to us. Speaking to you; those that are able to listen, to repent and to turn away from their sins. As a Christian in society today, the world will look at you, and look at something different, if you speak the truth, they will try and shut you out. Exactly what's happened today. If you turn to Isaiah chapter 5 verses 20, "Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!" Exactly what's happening right now: same-sex marriage, in the eyes of God it's evil. In society today, it's good. Abortion, in the eyes of God it's evil, in society today, it's good. To be a Christian and stand up for the truth seems like it's a criminal act, compared to people who go out and do drugs, sexual assault, go and murder, the world will accept you, accept you right back in. As soon as you stand up, and stand for the truth, and proclaim the truth, they will try and shut you out. Don't let that, any of that stuff hold you back from speaking the truth, we must be bold to continue to stand up and share the truth. Rugby Australia and Mr Folau release a joint statement 1. As noted above, on 4 December 2019 Mr Folau and Rugby Australia settled the legal dispute resulting from Mr Folau's dismissal from Rugby Australia and released the following media statement: The Social Media Post [the "religious message on social media" posted by Mr Folau] reflected Mr Folau's genuinely held religious beliefs, and Mr Folau did not intend to harm or offend any person when he uploaded the Social Media Post. Mr Folau wants all Australians to know that he does not condone discrimination of any kind against any person on the grounds of their sexuality and that he shares Rugby Australia's commitment to inclusiveness and diversity. Rugby Australia and NSW Rugby do not in any way agree with the content of the Social Media Post. Inclusiveness is one of Rugby's core values and it welcomes all people to the game, including all members of the LGBTI community. While it was not Rugby Australia's intention, Rugby Australia acknowledges and apologises for any hurt or harm caused to the Folaus. Similarly, Mr Folau did not intend to hurt or harm the game of rugby and acknowledges and apologises for any hurt or harm caused. … Mr Folau's response to the Board 1. On 12 February 2020, Mr Folau's solicitor (the Solicitor) submitted to the Board a detailed response to the Complaint, asserting that in making the Comments, Mr Folau did not contravene s 49ZT of the Act. In addition, the Solicitor asserted that the Comments were made in good faith for the purpose of religious instruction and therefore subject to the exception in s 49ZT(2)(b) in the Act. Section s 49ZT(2)(b) states that s 49ZT does not render unlawful a public act, "done reasonably and in good faith, for … religious instruction". 2. In addition, the Solicitor asserted that the Complaint is vexatious because it is: 1. "[O]bviously untenable and manifestly groundless as to be utterly hopeless; 2. had been bought for a collateral purpose and not for the purpose of having an adjudication of the legal issues, including to pay Mr Burns' outstanding legal costs arising out of unsuccessful litigation previously commenced by Mr Burns." 1. In a further letter dated 28 February 2020, the Solicitor requested the Board to dismiss the Complaint under s 92 of the Act. Referring to correspondence sent by Mr Burns to his firm, Mr Folau and Mr Folau's employer, the Solicitor asserted that that correspondence: 1. contains numerous threats against Mr Folau and his legal representatives; 2. constitutes both harassment and abuse against Mr Folau and his legal representatives; 3. goes beyond a statement of Mr Burns' position; 4. has induced a genuine and reasonable fear in Mr Folau for his safety; 5. amounts to an abuse of process, as contrary to the Board's requirements and direct instructions, Mr Burns: 1. has not copied in the Board or put the Board on notice of the majority of the correspondence; 2. sent confidential information about the Complaint to several third parties; 1. evidences that the Complaint is vexatious and frivolous and is brought for a collateral purpose without a proper basis. Mr Burns' interaction with the Board, Mr Folau and Mr Folau's legal representatives 1. The following outline is taken from the Solicitor's letter to the Board dated 28 February 2020 and is not disputed by Mr Burns. Go Fund Me request 1. On the day the Complaint was accepted for investigation by the Board, Mr Burns posted the following advertisement on the social media platform, "Go Fund Me": "The Garry Burns fighting fund Please consider helping me in my fight against vilification of LGBT people and other minority Australians. This important work is in the public interest – but it is difficult and expensive for an independent activist to undertake. I am currently taking legal action against sacked footballer Israel Folau over various anti-gay comments, including bracketing gay people with criminals (thieves) and other undesirables, such as perverts. This complaint has now been accepted for investigation by the President of the NSW Anti-Discrimination Board and will go to open court in the New Year if the matter cannot be conciliated. …legal of $82,000 over legal action against former Katter Party candidate Tess Corbett and others for comparing homosexuality to paedophilia Every dollar counts. Please consider donating what you can, even if it's just a dollar or … Thank you very much for any assistance you can give." Email to Mr Folau's employer 1. In an email sent in February 2020 to Mr Folau's (then) employer, the Catalan Dragons Rugby Club in France, Mr Burns wrote: "Garry Burns has no right to judge others so why does your recruit feel it's perfectly ok to discriminate and vilify others using religion to legitimise it" and "have a chat to your client and lets settle the proceeding"." Numerous emails sent to Mr Folau's legal representatives 1. Between 16 February 2020 and 28 February 2020, Mr Burns sent 37 separate emails to the legal firm representing Mr Folau in relation to the Complaint. They included: 1. an email sent 16 February 2020, with the subject line "Israel Falafal" which included a link to a Facebook video which the Solicitor asserted appeared to mock Mr Folau; 2. an email sent 18 February 2020, which stated in part: "[The Solicitor] should be contacting his client and working toward settling the proceeding instead of complaining about something his client has caused..." (The grammar and spelling of all quotes included in these reasons, is as in the original.) 1. an email sent 18 February 2020, which stated in part: "[T]he youtube clip is confronting and it obviously didn't tickle the funny bone of [Solicitor] … Have a chat to your client and let's settle the proceeding…" 1. 26 separate emails sent over a period of 15 minutes on 21 February 2020, containing links to cases on CaseLaw, which Mr Burns asserted supported his case; 2. an email sent on 24 February 2020 to the Solicitor and the Board with the subject line "Delusional nutter trying to save the world". The email included a link to a Facebook video of what appears to be a Christian man being arrested by police officers. 1. In addition, Mr Burns made several phone calls to the Solicitor. In the note of a message left by Mr Burns, the Solicitor's assistant recorded: "Young lawyers these days, they don't call me, get them to call me."… "Get him to settle, I'm not going to give up, I have lots of time." Alleged threats 1. In an email to the Solicitor sent on 18 February 2020, Mr Burns wrote: "[L]ets now see how [the Solicitor] enjoys dealing with Mr Burns without legal attendant ?..." 1. In another email sent on the same day, Mr Burns wrote "[The Solicitor] just remember one thing ... Anyone that wants a brawl with Garry Burns I will see them off..." 1. In an email sent on 25 February 2020 to the Commonwealth Attorney-General Christian Porter MP, blind copied to the Solicitor, Mr Burns wrote: "[A]s former Prime Minister Paul Keating once said to Federal Opposition Leader Mr John Hewson "I want to do you slowly mate. There will be no easy execution for you." Folau can hide behind his high paid lawyers like some limp wrist pansy but he will not dodge Mr Burns …" Alleged abuse 1. In an email sent to the Solicitor on 18 February 2020, Mr Burns wrote: (i) "[If the Solicitor] wants to carry on like some limp wrist pansy … give the poor darling a Valium or a Bex Powder..." (ii) "[The Solicitor] can bully and throw as many Bette Davis tantrums as he likes…". 1. Later on 18 February 2020, in an email to the Solicitor Mr Burns wrote: "Dear [the Solicitor], you've carried on like a incongruous imbecile throwing Gloria Swanson tantrums. Well you are not getting any Oscars from me…" (ii) "[The Solicitor] I verily do believe you are a "weak" man with no back bone. If someone said "boo" to you you'd wet your Calvin's..." (iii) "[A]nd If you think I'm easily intimidated by you and your fat cat lawyers think again…" 1. On 21 February 2020, in an email to the Board and the Solicitor, Mr Burns described Mr Folau's Church as: (i) a " pernicious church group… "; and (ii) that "…obscure fundamental church group that the respondent belongs…". Correspondence with the President and the Board 1. In an email sent to the Board on 4 March 2020 responding to the Board's invitation to comment on whether the Complaint should be dismissed, Mr Burns wrote: … If the NSW ADB does not refer the matter [to the Tribunal] it will be 'aiding and abetting' the unlawful vilification of homosexuals. That's the HEADLINE. … If this complaint is dismissed at "board" level I give the media permission to use any material in my name … in any news article it writes about complaints dismissal." 1. Describing as "incongruous", the Solicitor's submission that the Complaint amounted to an abuse of process on account of "harassment, threats and abuse", Mr Burns wrote that if the Solicitor or Mr Folau felt threatened by his actions, they should complain to police. He added that he had sent a copy of his email to the media: "[T]hese proceedings will be covered by the media because the work that the applicant does is in the public interest." 1. In an email sent later that evening to the Board, Mr Burns wrote: "The President needs to go back to the then ADT proceedings in Burns v Radio 2UE. … … the vast majority of my complaints are substantiated /upheld and I'm only a bush lawyer. But I know a thing or two about discrimination law. The board should play no role as to the merits of a complaint. That's not it's role. The role of the board is to comply with a state law … Please consider." Submissions 1. Mr Folau submits that the Tribunal should decline to exercise the discretion to grant leave for the Complaint to proceed for the following reasons. 2. First, the prospects of Mr Burns establishing the Complaint are poor. 3. Second, Mr Burns has engaged in threatening, abusive and other harmful conduct directed towards Mr Folau and his legal representatives. While Mr Burns seeks to now resile from that conduct on the basis that he is not seeking a monetary settlement, he was not acting for collateral purposes and his conduct was caused by a medical condition, Mr Burns' ex post facto rationalisations for his conduct should not be accepted. 4. Third, given that Mr Burns now claims that he no longer seeks damages, the sole purpose of the proposed proceedings is to seek an apology for homosexual people. Mr Folau points out that the joint public statement with Rugby Australia, which was issued after the making of the Comments, contains a statement of apology to the public at large, and states that he does not "condone discrimination of any kind against any person on the ground of their sexuality". 5. Mr Burns urges the Tribunal to grant leave for the Complaint to proceed for the following reasons. 6. First, Mr Burns acknowledges that throughout the period the Board was investigating the Complaint (2 December 2019 to 15 April 2020), his conduct was "regrettable" but contends it was the result of him being unwell. He claims his response was triggered by the Solicitor's dismissive treatment of the Complaint. 7. Second, pointing out that the President did not decline the Complaint on the ground that it lacked substance, Mr Burns contends that it would amount to a "practical injustice" to decline a complaint that was arguable. 8. Third, if the Tribunal were to deny him the right to a "hearing on the merits", it would send a "pernicious message" to minority groups: [T]hat the Complainant who was unwell while his complaint was before the "board' under investigation and while he or she was unwell had conducted themselves in a manner that was deemed "vexatious" is punished by the Tribunal by refusing to grant leave. 1. Fourth, the only remedy he now seeks is an apology. 2. Finally, to refuse to grant leave would offend the principles of the Act. Should leave be granted? 1. Whether it is fair and just to permit the Complaint to proceed turns on three key questions: 1. Whether, as Mr Folau contends the Complaint is "lacking in substance" in the sense that it is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. 2. Whether Mr Burns' conduct in the course of the Board's investigation of the Complaint renders the Complaint vexatious and/or amounts to an abuse of process. 3. If so, whether Mr Burns' conduct was the result of a medical condition. Does the Complaint lack substance? 1. I reject Mr Folau's submission that the Complaint lacks substance and is "utterly hopeless". 2. In my view, it is arguable that, objectively assessed, each Comment had the capacity to incite hatred towards, serious contempt for homosexual people on the ground of their homosexuality. (For an explanation of the elements necessary to establish a complaint of unlawful vilification under the Act, see Sunol v Collier and anor (No 2) [2012] NSWCA 44 at [79]; Jones v Trad [2013] NSWCA 389 at [27]). 3. Further, I reject Mr Folau's submission that if one or more of his comments is found to satisfy the test in s 49ZT(1), the exception in s 49ZT(2)(b) will necessarily apply. Without proper argument and evidence, it is not possible to determine whether the exception will or will not apply. Notably, the onus of proving that the exception applies lies with Mr Folau: s 104 of the Act. Is the Complaint vexatious? 1. As properly conceded by Mr Burns, his interaction with the Board, Mr Folau and the Solicitor was inappropriate. Many of the comments contained in the series of emails he sent to the Solicitor were churlish, offensive and personally insulting. His actions in contacting the Catalan Football Club demanding that it encourage its "new recruit" to "settle the proceeding" was reprehensible. 2. Of particular concern are the series of thinly veiled threats made to the President and officers of the Board that if the Complaint were to be dismissed Mr Burns would publicly declare that the President was "aiding and abetting" the unlawful vilification of homosexuals. Also of concern is the disrespectful, intemperate and hectoring tone of many of the emails sent by Mr Burns to the Board together with his failure to comply with the Board's request to maintain confidentiality throughout the investigation. 3. I find that one of the reasons Mr Burns initiated the Complaint was for the collateral purpose of obtaining a monetary settlement from Mr Folau to fund unrelated legal proceedings. In addition, I find that Mr Burns' interaction with the Solicitor throughout the investigation period and his actions in contacting the Catalan Football Club amounted to harassment and abuse. Further, I find that his conduct in threatening the Board and the President and failing to comply with the request to maintain confidentiality amounted to an abuse of process. Was Mr Burns' conduct the result of a medical condition? 1. In support of his claim that he was unwell throughout the period during which the Complaint was under investigation by the Board, Mr Burns relies on two psychological reports. At Mr Burns' request in these reasons, I will limit the discussion of the details of those reports. 2. In a report dated 19 December 2013, a psychologist, who had seen Mr Burns on two occasions for treatment of anxiety and depression, wrote that Mr Burns had made a "full recovery" from a psychological condition but was suffering from stress and anxiety. 3. In a report dated 27 July 2020, a psychologist recorded that Mr Burns was deeply distressed when he presented for treatment in early July 2020 as a consequence of being required to pay significant legal fees, apparently arising out of the High Court decision handed down in April 2018: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15. The psychologist does not refer to the state of Mr Burns' mental health during the investigation period. Nor does he state that Mr Burns' condition caused him to act irrationally or out of character. 4. At the hearing of the leave application, I invited Mr Burns to provide further evidence about the state of his health during the period the Complaint was under investigation. He provided supplementary submissions in support of the leave application but no further material about his state of health. 5. The 27 July 2020 psychological report is not inconsistent with Mr Burns' claim that he was anxious throughout the investigation of the Complaint. Nonetheless, of itself or taken together with the available material, it is insufficient to support Mr Burns' claim that his conduct, specifically his interaction with Mr Folau, the Solicitor and the Board throughout the period the Complaint was under investigation, in part or whole, was the result of him suffering anxiety or some other medical condition. Consideration 1. In exercising the discretion to grant or to refuse leave for the Complaint to proceed I must be guided by the consideration that the refusal of leave will finally determine Mr Burns' rights: Jones at [57]; Ekermawi at [32]. I must also consider whether it is "fair and just" to grant or refuse leave in the particular circumstances of this case, having regard to the interest of both parties. 2. I do not share the confidence expressed by each party that if the Complaint were referred to the Tribunal for determination, it is a fait accompli that it would be found to be substantiated/not substantiated. 3. I reject Mr Folau's submission that because Mr Burns has announced that the only remedy he now seeks is an apology, there would be no utility in permitting the Complaint to proceed given the issue of the joint statement with Rugby Australia. First, assuming that the Complaint was found to be substantiated that statement, while relevant to, is not determinative of whether the power to order Mr Folau to issue a further apology should be exercised under s 108 of the Act. Notably, the joint statement does not address whether the Comments amounted to unlawful vilification. In addition, as Mr Burns contends, arguably a public adjudication would promote the objects of the Act set out in the long title to the Act "to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons". 4. I accept that obtaining a monetary settlement from Mr Folau was probably not the sole reason Mr Burns made the Complaint to the Board. I also accept that Mr Burns holds the genuine belief that the Comments amounted to unlawful vilification under the Act. Nonetheless, the inescapable conclusion is that one of the reasons Mr Burns made the Complaint was for the collateral purpose of securing a monetary settlement to pay the legal costs of unrelated legal proceedings. 5. I reject Mr Burns' claim that he played no role in the GoFundMe campaign. There is no evidence that he did not approve of or sought to distance himself from that campaign. Indeed, the media release issued by Mr Burns on the day the Board accepted the Complaint, indicates that he endorsed and promoted that campaign. 6. Of concern, as I have noted, is Mr Burns' conduct throughout the Board's investigation of the Complaint. This was not a case of an occasional inappropriate comment or outburst by a self-represented complainant but of repeated and persistent conduct that, objectively assessed, amounted to abuse and harassment. It would not be reasonable to expect a self-represented party to comply with the standards of conduct that apply to Australian legal practitioners, nor to assess their conduct by reference to those standards. Nonetheless, this does not mean that their conduct can never amount to an abuse of process. Notably, Mr Burns was not a novice complainant. He has significant experience in the conduct of legal proceedings and is familiar with the standards of conduct expected of parties in dealing with each other and the Board. 7. There is, undoubtedly, a discretion to grant leave for a complaint to proceed even where the President is satisfied that it is vexatious and has decided to exercise the discretion to dismiss the complaint. In my view, given the egregious nature of Mr Burns' conduct it would not be in the interests of justice to permit the Complaint to proceed, notwithstanding my view as stated above that the Complaint is arguable. Orders 1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed. ********** 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: 18 November 2020