Set aside by Appeal : Set aside by Appeal on 27 September 2006 (Sunol v Collier (EOD) [2006] NSW ADTAP 51) CITATION: Collier v Sunol (No 2) [2006] NSWADT 88 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Henry Collier RESPONDENT John Christopher Sunol FILE NUMBER: 051037 HEARING DATES: 09/02/06 SUBMISSIONS CLOSED: 02/09/2006 DATE OF DECISION: 03/24/2006 BEFORE: Chesterman M - ADCJ (Deputy President); Gill M - Non Judicial Member; Groth D - Non Judicial Member CATCHWORDS: Vilification - Homosexual MATTER FOR DECISION: Remedies and Costs LEGISLATION CITED : Anti-Discrimination Act 1977 Racial and Religious Tolerance Act 2001 (Vic) Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 CASES CITED: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Collier v Sunol [2005] NSWADT 261 Islamic Council of Victoria v Catch the Fire Ministries [2005] VCAT 1159 Jordan v North Cost Area Health Service (No 3) [2005] NSWADT 296 APPLICANT S Pritchard, barrister REPRESENTATION: RESPONDENT In person ORDERS: 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; 2. The Respondent is to refrain from publishing material on any of these topics on any website, whether or not controlled by him; 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; 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. REASONS FOR DECISION Introduction 1 In these proceedings, the Applicant, Mr Henry Collier, alleged that material published by the Respondent, Mr John Sunol, on the internet during September and October 2004 vilified homosexual people contrary to provisions of the Anti-Discrimination Act 1977 ('the ADA'). 2 According to Mr Collier, Mr Sunol published this material in two ways: by including it in material published on websites controlled by him and by contributing it to websites controlled by others, notably two websites called web-ministry.com and wollongongmusicscene.com. All the websites involved were accessible to the general public without a password. 3 We heard Mr Collier's application on 28 September 2005. In a decision delivered on 17 November 2005 (Collier v Sunol [2005] NSWADT 261), we upheld his claim of unlawful vilification with respect to five statements that were set out in his Points of Claim. We dismissed it with respect to a further three statements. 4 We directed that there should be a further hearing dealing with the orders, if any, that we should make (a) by way of remedy for Mr Collier and (b) on account of the costs incurred by him. That hearing took place on 9 February 2006. 5 We now give our decision on these two matters. In relation to both of them, we have accepted, broadly speaking, the submissions advanced on behalf of Mr Collier. Remedies 6 Evidence and argument. At the hearing on 9 February 2006, the orders that Mr Collier sought from the Tribunal by way of remedy were that Mr Sunol be required to do the following things: - (a) remove from every website controlled by him any material concerning homosexual men, lesbians, homosexuality or the gay lobby; (b) refrain from publishing material on any of these topics on any website, whether or not controlled by him; and (c) within seven days of our decision, post on every website controlled by him, and in addition on web-ministry.com and wollongongmusicscene.com, an apology in respect of all material that he has published concerning homosexual men, lesbians, homosexuality or the gay lobby, which material he accepts incites hatred towards, serious contempt for or severe ridicule of homosexual persons. 7 These proceedings were instituted in the Tribunal by Mr Collier before the commencement of the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. Accordingly, by virtue of clauses 14 and 15 of Part 1 of Schedule 5 of that Act, the provision determining the range of remedial orders available to us is s 113(1)(b) of the ADA, in the form that it took before its repeal by the amending Act. 8 The relevant subparagraphs in the now repealed s 113(1)(b) provide that when a complaint has been wholly or partly upheld, the Tribunal may: - (ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act; (iii) 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 the 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). 9 At the hearing, Ms Pritchard, counsel for Mr Collier, drew our attention to the following observations of the Tribunal in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [29], regarding apologies ordered under s 113(1)(b)(iiia): - We agree that if an apology is understood, as it is commonly understood, to be a statement that reflects a person's own feeling of regret for conduct that has caused offence or harm, then of its nature it cannot be ordered to be made, unless the feeling is in fact held and it is only its expression that is ordered. In submissions the applicant, however, says that an apology for purposes of s113(1)(b)(iiia) should be understood as being associated with a legal requirement, rather than "genuine and voluntary". The Anti-Discrimination Act 1977 makes clear that there is power to order an apology in respect of a vilification complaint. The apology is acknowledgement of the wrongdoing and, seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings, it can properly be compelled by way of order. There would be a welcome extra dimension to the apology if it reflected that the person actually regrets the conduct. 10 We agree with these observations. We would mention in addition the comment by the Tribunal that 'there is an educative dimension to the Anti-Discrimination Act 1977 implicit in the nature of the orders that we are empowered to make in circumstances, such as this matter, where the complainant was not personally the subject of the unlawful conduct' (at [27]). 11 Ms Pritchard handed up a suggested draft apology, based on the forms of apology that were ordered in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) at [47] and in Islamic Council of Victoria v Catch the Fire Ministries [2005] VCAT 1159, a case decided by the Victorian Civil and Administrative Tribunal under the Racial and Religious Tolerance Act 2001 (Vic). As recommended in Burns, it contained an 'acknowledgement of the wrongdoing' and could be 'seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings'. We will not set out the text of this draft, since with some amendments, briefly outlined below, it has been adopted by us as an appropriate apology to be ordered in this case. 12 Ms Pritchard also tendered an affidavit by Mr Collier annexing copies of printouts of material that he had downloaded from a publicly accessible website (groups.yahoo.com/group/sunoljcd2005/) which Mr Sunol identified as his personal website during the hearing on 28 September 2005. The dates of posting of this material ran from 18 November 2005 (the day after our decision was delivered) to 19 December 2005. The text of the affidavit quoted a number of statements from this material that were apparently posted by Mr Sunol. They expressed strong opposition to our decision and suggested that Mr Sunol would not be prepared to abide by any orders that we might make. 13 Initially, Mr Sunol told us that many of the statements highlighted in the affidavit had been put on his website by 'hackers' who had gained access to his site and were determined to attack and defame him. At the earlier hearing of this matter, he had made the same allegation with respect to various parts of the material that we found to constitute unlawful vilification. He later admitted, however, that on account of feeling angry at the outcome of the earlier hearing he himself had posted a number of the highlighted statements. He identified several of them as his own, all of which displayed hostility towards our decision. 14 Ms Pritchard relied on this affidavit of Mr Collier in support of a submission that this was a case where it was clearly important that some order or orders, along the lines now being sought, should be made against Mr Sunol. She argued that if no such order were made, our decision of 17 November 2005 would have, and would be seen to have, no practical impact. Since Mr Collier had not been made the target of any personal attack and had therefore made no claim for damages, there would be no order at all by way of remedy. The outcome would be that nothing would have been done to prevent the recurrence of conduct found to have been in breach of the ADA. 15 In a written submission, Mr Sunol (who appeared in person) indicated that he would have 'no problem' in complying with paragraph (a) of the orders sought by Mr Collier (these are set out at [6] above). While saying that he had 'no problem' with paragraph (b) either, he expressed some concern about it because he believed that the alleged 'hackers' whom we have just mentioned might post material that would be deemed to have vilified homosexuals. He displayed more resistance to paragraph (c), principally on the ground that he did not wish to apologise for material that the alleged 'hackers' had placed on his site. He submitted also that he should not be ordered to post any apology on what he called 'Christian sites' because he would then be 'speaking to the contrary [to] what I believe to people that are in the same belief as myself'. 16 At the hearing, Mr Sunol repeated his claim that if we made an order in terms of paragraph (b), 'hackers' might place material on his website that would be in breach of the order and might therefore implicate him in an apparent contempt of our order. He asked us to make an accompanying order prohibiting other people from posting unlawful material on his website, adding that in an appeal that he has instituted against our decision of 17 November 2005 he would be seeking to adduce fresh evidence to establish that 'hackers', whom he identified by name, had indeed gained access to his website. In relation to paragraph (c), he stated that he did not object to the form of apology proposed by Ms Pritchard (see [9 – 11] above), or to being ordered to post it on the sites that he controlled and on wollongongmusicscene.com. He said, however, that he had reservations about its appearing on web-ministry.com. 17 Our conclusions. We accept Ms Pritchard's submission that, for the reasons she advanced, orders by way of remedy should be made. They should be similar to those proposed by her. 18 In addition to the considerations urged by her, we would point out that since in our earlier judgment we applied the label 'sweeping generalisations of a highly insulting and offensive nature' to four of the five statements published by Mr Sunol that we found to be unlawful (see Collier v Sunol [2005] NSWADT 261 at [74]), this is not a case where the infringements of the ADA committed by him could be said to be 'at the less serious end of the scale'. If in another vilification case it was only by a narrow margin that the published statements were held 'serious' enough to be capable of inciting hatred or serious contempt, this might be a relevant consideration in deciding whether or not to make orders by way of remedy (cf the discussion of this issue in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [7 – 19]). The present case is not in that category. 19 We have taken due account of Mr Sunol's assertions that his personal website has been invaded in the past by 'hackers' who are hostile to him and that this might well occur in the future, with the consequence that he might unjustifiably be held in contempt of our orders. But we have already held in our earlier decision (Collier v Sunol [2005] NSWADT 261 at [15 – 28]) that his evidence that 'hacking' occurred in the past was unconvincing. If in the appeal that he has instituted he is permitted to adduce further evidence in support of this claim, the Appeal Panel will be in a position to determine whether our finding on the matter should be confirmed or set aside. Furthermore, if in the future any postings contravening our orders were to appear on any website, with the consequence that he was required to answer a charge of contempt, it would still be open to him to defend the charge by asserting, with support from appropriate evidence, that these postings were made by 'hackers', not by him. Finally, his request that we should add to our orders a further order prohibiting other people from posting unlawful material on his website is clearly not open to us in these proceedings, in which none of the alleged 'hackers' has been joined as a party. In his oral submissions, Mr Sunol appeared at one point to recognise this. 20 We have noted Mr Sunol's concerns arising from the prospect of being ordered to post an apology on one or more 'Christian sites'. But since the apology that we are ordering does not require him to make any expression of 'genuinely held feelings', we do not think that these concerns arise to any significant extent. Even if they did, they would not in our view warrant excepting any specific websites from the scope of our order. 21 We agree with Ms Pritchard that the apology to be ordered should be limited in accordance with the approach adopted in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24. It should acknowledge that some of the material in Mr Sunol's past publications constituted unlawful vilification, but need not purport to be a statement of 'genuinely held feelings'. We note, however, that Mr Sunol claimed at both of the hearings that he did not intend to attack or criticise homosexual people generally, but only specific organisations within the homosexual community, such as the Gay and Lesbian Mardi Gras. If this is indeed the case, we hope that the apology being ordered will in fact reflect, to some degree at least, Mr Sunol's personal feelings. 22 In framing the apology, we have made two minor amendments to the last sentence of the draft apology that Ms Pritchard handed up. These amendments make it clear that the undertaking made by Mr Sunol in that sentence (a) relates only to statements that are public and (b) is confined to public statements that vilify homosexual people, or groups of homosexual people, on the ground of their homosexuality. Both amendments seek to ensure that the conduct in which Mr Sunol undertakes not to engage falls wholly within the scope of unlawful vilification as defined in the ADA. 23 We have also increased from seven to fourteen days the time prescribed for compliance with the orders proposed in paragraphs (a) and (c). 24 The text of the orders that we make by way of remedy appears below, at [44]. Costs 25 Evidence and argument. Under s 110 of the ADA, each party to proceedings before the Tribunal is to pay his or her own costs (subsection (1)), unless in a particular case the Tribunal is of the opinion that there are circumstances that justify it making a costs order. In this event, it may make such order as it thinks fit (subsection (2)). 26 As pointed out by the Appeal Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 at [63 – 67], this section creates 'a presumption in subsection (1) and a discretion in subsection (2)'. The discretion must be exercised judicially, taking account of all considerations that may properly be considered to be relevant. To justify a costs order, there must be 'something over and beyond a normal course of circumstances'. 27 Ms Pritchard tendered a statement by Ms Joanna Shulman, who is Mr Collier's solicitor in these proceedings. Annexed to the statement were copies of costs agreements between Mr Collier and two organisations (the Inner City Legal Centre and the Public Interest Advocacy Centre) that have successively employed Ms Shulman while she has been acting for him. This evidence showed that the costs and disbursements likely to be incurred by Mr Collier in maintaining these proceedings were of the order of $18,000. Mr Sunol did not challenge this estimate. 28 In submitting that the recognised criteria for a costs order were satisfied in this case, Ms Pritchard relied on four specific features of the proceedings. These were as follows. 29 First, Mr Collier, having not been specifically targeted in any of the offending statements published by Mr Sunol, did not seek an award of damages. If in such circumstances no costs order was made, the important rights and protections conferred by the ADA on the homosexual community would be undermined by the fact that an individual, such as Mr Collier, who sought to vindicate them on behalf of that community would have to meet the cost of so doing out of his/her own pocket. 30 Secondly, Mr Sunol had conducted his defence in such a manner as to enhance unwarrantably the costs and disbursements to be paid by Mr Collier. In support of his allegation – which we held to be unsustainable – that some of the offending publications attributed to him had been posted by 'hackers' on websites under his control, he had tendered no evidence (lay or expert) apart from his own assertions. But by making this allegation, he had compelled Mr Collier to engage two expert witnesses and a lay witness. He had made extreme and unfounded allegations against two of these witnesses, whom he required to attend for cross-examination. By not requiring the third of them to attend, even though he had had ample time before the hearing to do so, he had allowed convincing expert testimony that directly contradicted his own allegations to go unchallenged. 31 Thirdly, this case had an important public interest component. This was to stop people publishing material that deprived a significant section of society – namely, homosexual people – of the right to live in the community without being unlawfully subjected to 'sweeping generalisations of a highly insulting and offensive nature'. Because the offending statements by Mr Sunol were published worldwide on the internet, this was not simply a private dispute. 32 Fourthly, our decision of 17 November 2005 clarified an important question of law arising under the vilification provisions of the ADA. This was whether publication on the internet constituted a 'public act' within the meaning of s 49ZS of the Act. 33 We will refer to two authorities cited to us in this context by Ms Pritchard. In the first, Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35, the Tribunal held at [22] that factors defined in very similar terms to these four features of the present case had been held, 'in combination with other factors', to be 'the kinds of circumstances which have been regarded in previous cases as justifying the making of a costs award'. 34 Omitting a number of authorities to which the Tribunal referred, those factors were defined in its judgment as follows: - Whether the applicant's costs exceed or are disproportionate to the amount of damages awarded. The manner in which the parties have conducted the proceedings. Whether the case raises any important public policy or public interest considerations. Whether the proceedings determine or clarify an important question of law. 35 At [23], the Tribunal said: 'The circumstances listed above appear to reflect an overall concern that the substantial rights and protections conferred by the ADA should not be undermined by the cost of vindicating them.' 36 Secondly, Ms Pritchard cited the very recent decision in Jordan v North Coast Area Health Service (No 3) [2005] NSWADT 296. Here the Tribunal based a costs order under s 110(2) of the ADA on one only of the factors that we have been considering, namely, the fact that the legal costs incurred by the successful applicant considerably exceeded the amount of compensation. In so doing, it departed from an observation in Borg (at [21]) that 'as a general proposition a combination of circumstances is required in order to justify an award of costs' and from the same observation, without the initial qualifying words, in Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [40]. 37 In his written submissions, Mr Sunol expressed his opposition to the making of any costs order against him. But neither in these submissions nor at the hearing did he advance any legal arguments on the matter. 38 Our conclusions. In our opinion, a costs order should be made, on the grounds put forward by Ms Pritchard. In particular, we agree with her that this case involves a important public interest consideration – protection of homosexual people from the widespread dissemination of statements that constitute unlawful vilification – and that since no damages were claimed by Mr Collier, this protection should not be undermined by the fact that, in the absence of a costs order, he would he left significantly out of pocket. 39 In further support of this way of viewing the case, we rely on the following observations of the Tribunal in a recent case to which we have already referred more than once. In Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24, a case dealing with vilification of homosexual people in the course of broadcasts on public radio, the Tribunal awarded costs to the successful applicant. In so doing, it said at [42 – 43]: - 42 As no amount of damages has been awarded, costs that the applicant is liable to meet necessarily exceed an award. That an award of damages was not made does not reflect adversely on the merits of the complaint; rather it is a function of the public interest nature of the complaint, itself a consideration in whether a costs order is justified. 43 The matter has required us to decide what we consider to be an important public interest consideration. As news media reports provided to the Tribunal by the respondents show, the respondents have themselves said that the matter is one that pits a conception of freedom of speech against Parliament's attempts to limit what can lawfully be said in public. 40 We take account also of the features of Mr Sunol's conduct of the case that attracted criticism from Ms Pritchard. He maintained before and during the proceedings that 'hackers' were responsible for the offending publications that appeared to have been posted by him, and that he had access to expert evidence that would both establish this and justify his accusations against the alleged 'hackers'. But he failed to produce any such evidence or to mount a sustained challenge to the case brought against him on this issue. In the result, Mr Collier was put to significant extra expense. 41 We agree that, in deciding that publication on the internet constituted a 'public act' within the meaning of s 49ZS of the ADA, we dealt with an issue that had not previously been determined. But we would not place undue emphasis on this factor, since it appeared beyond doubt to us that the definition of 'public act' would include the form of worldwide dissemination that the internet provides. 42 As we mention above at [3], Mr Collier's claim was not wholly successful. But the issues on which it failed were not given separate consideration during any significant proportion of the hearing. He should not be denied a full costs award on this account. 43 For the foregoing reasons, we uphold in full Mr Collier's application for costs. Our orders 44 We make the following orders: - 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. 2. The Respondent is to refrain from publishing material on any of these topics on any website, whether or not controlled by him. 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following statement, attributed to him, 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. 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. 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.