Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Burns v Sunol (No 2) [2012] NSWADT 247 Hearing dates: 17 August 2012 Decision date: 28 November 2012 Jurisdiction: Equal Opportunity Division Before: M Chesterman, Deputy President E Hayes, Non-judicial Member N Hiffernan, Non-judicial Member Decision: 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 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 apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 6 January and 1 May 2012, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals 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. 4. The Respondent is to pay to the Applicant the sum of $2,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of this decision. 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol (No 2), has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. Yours faithfully John Sunol. 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. Catchwords: Homosexual vilification - victimisation - remedies Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Racial Discrimination Act 1975 (Cth) Cases Cited: Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 Burns v Dye [2002] NSWADT 32 Burns v Laws (No 2) [2007] NSWADT 47 Carter v Brown [2010] NSWADT 109 Chand v Rail Corp [2011] NSWCA 79 Cohen v Harguos; Karelicki v Harguos [2006] NSWADT 209 Cohen & anor v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275 Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2008] NSWADT 339 Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 Jones v Toben [2002] FCA 1150 Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 Kimble & Souris v Orr [2003] NSWADT 49 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sunol v Collier (EOD) [2006] NSWADTAP 51 Sunol v Collier (No 2) [2012] NSWCA 44 Category: Principal judgment Parties: Gary Burns (Applicant) John Christopher Sunol (Respondent) Representation: G Burns (In person - Applicant) J Sunol (In person - Respondent) File Number(s): 121050, 121058, 121070, 121082 decision 1This decision relates to four matters in which the Applicant, Gary Burns, alleged that the Respondent, John Sunol, had engaged in unlawful vilification on the ground of homosexuality under the Anti-Discrimination Act 1977 ('the Act') and had victimised Mr Burns within the meaning of the Act. 2A total of 16 complaints making these allegations were lodged by Mr Burns with the Anti-Discrimination Board ('the Board') in the period between 6 January and 1 May 2012. They were referred to the Tribunal as four matters and were given file numbers 121050, 121058, 121070, 121082. The dates of filing of the President's Reports relating these matters were respectively 13 April, 1 May, 16 May and 22 June 2012. 3The Tribunal heard these matters on 17 August 2012 and reserved its decision. At the hearing, both parties were self-represented. 4The admitted documentary evidence in these proceedings comprised the four reports of the President of the Board whereby Mr Burns' complaints were referred to the Tribunal, statements tendered in each of the four matters by the parties and a bundle (tendered by Mr Burns) chiefly made up of printouts of email messages sent to him by Mr Sunol. 5At the hearing, both parties gave oral evidence and were cross-examined. Much of their evidence was not relevant to the questions to be determined. 6The present decision is delivered contemporaneously with a decision relating to four other matters (files 111024, 111043, 111120, 121023) involving the same Applicant and Respondent. These derived also from complaints by Mr Burns of unlawful vilification on the ground of homosexuality and of victimisation. At the hearing of these matters on 26 and 27 June 2012, the Panel constituting the Tribunal had a different membership to the Panel in the present proceedings. 7We will call the decision relating to these four other matters 'the main decision'. This is because it contains explanations of relevant legal principles that are important for the decision that we are now giving but will not be recapitulated. The present decision should accordingly be read in conjunction with the main decision. 8Mr Burns' claims are based almost entirely on publications for which (he maintains) Mr Sunol bears responsibility. We will consider first the publications whereby Mr Sunol, according to Mr Burns, engaged in unlawful vilification on the ground of homosexuality. We will then turn to the publications and other conduct by Mr Sunol alleged to have amounted to victimisation of Mr Burns. the allegations of unlawful vilification 9Relevant provisions of the Act relating to unlawful vilification of homosexuals are set out in the main decision at [8 - 9]. The most important of these are sections 49ZS and 49ZT. They establish that if a person, by a communication constituting a 'public act' as defined in section 49ZS, incites 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, he or she will have engaged in unlawful homosexual vilification under subsection (1) of section 49ZT unless the communication falls within one or more of the exceptions to liability defined in subsection (2) of that section. 10Cases elaborating on the criteria for determining whether a 'public act' falls within section 49ZT(1) of the Act are summarised in the main decision at [10 - 21]. The operation of these criteria is illustrated at [42 - 54]. 11It was not disputed that Mr Burns is a homosexual man and therefore has standing under section 88 of the Act to lodge complaints about unlawful vilification of homosexuals. He has, to use the language of section 88(a), 'the characteristic that was the ground for the conduct that constitutes the alleged contravention'. 12In identifying the publications by Mr Sunol alleged to have vilified homosexuals unlawfully, Mr Burns relied chiefly on the President's four reports. The material annexed to these reports included his complaints and other communications to the Board, in which he reproduced wholly or in part the published statements on which he based his case. This material also included pages of printouts from the internet, within which these statements could be found. 13Mr Burns' claim of unlawful homosexual vilification within the 16 complaints that he lodged with the Board was that each of seven publications of text, for which Mr Sunol bore responsibility, contravened section 49ZT(1) of the Act through inciting hatred and/or serious contempt of homosexual people on the ground of their homosexuality. The requirement of a 'public act' 14Five of these publications appeared on Mr Sunol's Facebook page or 'blogspot'. He admitted at the hearing that he controlled this website. He did not deny responsibility for committing a 'public act' (as defined in section 49ZS(a) of the Act) whereby these five passages of text were communicated to the public. 15The two publications that did not appear on Mr Sunol's website could be found by clicking on short 'linking statements' (as we will call them) forming part of the material published on this site. In each case there was a different linking statement, published on a different date. 16Relying on an extract from Collier v Sunol [2008] NSWADT 339 quoted in the main decision at [20] and discussed at [33 - 35], Mr Sunol argued that his conduct in merely making a link to another site available on his own site was not a 'public act', as defined in section 49ZS, so far as the linked publications were concerned. He pointed out also that nothing in the material surrounding the linking statement prompted readers to make use of the link. The submission put by Mr Burns relied on the fact that, in each case, the linking statement was in a different colour, and typed in a different font, to the text surrounding it. There was, he said, an implicit invitation to readers to click on this statement and thereby obtain access to the offending publication. 17In resolving this question, we must give separate consideration to each of the two publications, because the linking statements on Mr Sunol's site and the passages of text accompanying them were materially different. 18The first (in point of time) of the two linking statements appeared on Mr Sunol's website on 28 January 2012. This statement, in a different colour and typed in a different font to the surrounding text, comprised the phrase 'it brings evilness upon the Human race' appearing within the following paragraph:- I will not ramble on this very much at all, but homosexuality is a choice, a human choice and it is sin against God. Condemns this as with this choice it brings evilness upon the Human race and destruction. 19This paragraph appeared immediately under the heading 'Homosexuality is a choice, it is NOT GENETIC'. The ensuing text included further assertions that homosexuality was sinful and contrary to God's law. But it said nothing about the content of the linked publication, nothing to indicate expressly that clicking on the linking statement would take readers to another site and nothing that would or might prompt them to do this. 20The linked publication, appearing under the heading 'How gay sex is tantamount to murder', contained statements that on the face of them appeared clearly to vilify homosexuals unlawfully. 21In our judgment, the fact that the linking statement was highlighted through being in a different colour and different typescript to the text surrounding it is not enough to justify a finding that Mr Sunol communicated the linked publication to the public or otherwise committed a 'public act' in relation to this publication. Although many readers might well have realised (though we had no evidence on this point) that this highlighting indicated a link to another site, there was nothing more in the way of an express or implied invitation to readers to make use of the link. 22There are dangers, we think, in ruling that the existence of an evident link between a 'linking statement' on one website and 'offensive' material (e.g. because it vilifies or is defamatory) on other site is sufficient, without more, to make the publisher of the linking statement liable as a publisher of the offending material. 23The second of the two linking statements appeared on Mr Sunol's website on 2 March 2012. This statement, in a different colour and typed in a different font to the surrounding text, comprised a heading and two short sentences, as follows:- this type of garbage should be taken off the net, and banned and those prosecuted who put this kind of material online. This is really bad - look bad. 24The text immediately following included an assertion by Mr Sunol that he did not vilify or 'use bad language' and a suggestion that 'Gary' (evidently Mr Burns) should 'concentrate on getting this kind of rubbish off line and having those prosecuted for putting it online and using defamation and vilification'. 25In this second instance, the linked publication was a lengthy passage of text. It also contained a number of statements that on the face of them appeared clearly to vilify homosexuals unlawfully. 26Undoubtedly, the text accompanying the linking statement in this instance provided information to readers both of the existence of a link and of the general nature of the linked publication. But it was left to readers of his site, having taken this information into account, to decide for themselves whether or not to click on the link. 27For these reasons, we conclude that in this second instance Mr Sunol did not communicate the linked publication to the public or otherwise commit a 'public act' in relation to this publication. The publications for which Mr Sunol was responsible 28The text of the five remaining publications on Mr Sunol's website that, according to Mr Burns, vilified homosexuals unlawfully was set out in his complaints to the Board and in printouts from the internet that he attached to these complaints. 29We will now reproduce them in chronological order, together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:- 1. [121050: Under the heading 'Homosexuality is a choice, it is NOT GENETIC' - this passage includes the first of the two linking statements discussed above] 'I will not ramble on this very much at all, but homosexuality is a choice, a human choice and it is sin against God. Condemns this as with this choice it brings evilness upon the Human race and destruction. Homosexuality is a Behavioural disorder brought on by the social conditioning of mankind It is sin, nothing else and nothing more but plain straight out disobedience to God our Maker and Savior When you sin in such a way you leaver yourself open for Demons to oppress you and it mixes in with witchcraft. These are the reasons we MUST NOT ACCEPT THIS SINFUL BEHAVIOUR AND GAY MARRIAGE IS WICKEDNESS, I do not believe in or will accept homosexual rights as they have no rights for their sinful choice in society. This is all I will state on this but homosexuals need deliverance from their sinful behaviour and the evil spirits oppressing them and repentance to the Lord. Repentance to the Lord and deliverance from this sinful and wicked behaviour is the ONLY WAY FOR SALVATION IF YOU ARE A PRACTISING HOMOSEXUAL. when one person has sex with the same sex they deliver evil spirits between one another, In a marriage to the opposite sex which is not blood related the Holy Spirit then takes over and goes between the two.' (28 January 2012) 2. [121058: Under the heading 'China's gays celebrate love on Valentine's day] 'this is not the part of Chinese culture, Original Chinese culture is very Nuclear family orientated and anti Gay - I blame this as part of that dirty filthy poof Henry Collier who has now since died. It is wicked in the eyes of God.' (15 February 2012) 3. [121070: On the day before the Mardi Gras parade, with the second sentence in large print] 'that dirty filthy faggots March is in Sydney tonight, I tell you keep me out of this. this Mardi Gras is a disgrace to Australia.' (3 March 2012) 4. [121070: Also on the day before the Mardi Gras parade, with the second sentence in large print and providing a link to the website of the Mardi Gras] 'Never put me in this child molesters and pedophiles event, Sydney gay mardi Gras. or all hell will break out. as this is just a child molesters and paedophiles Happy parade' (3 March 2012) 5. [121070: With a link from the word 'Mortein' to the website of Mortein, a brand of insecticide] 'Gary B and his poofy followers are Lui the fly and I will be the Mortein that cleans the world of this disease.' (8 March 2012) Our conclusions on homosexual vilification 30In our opinion, publications 2 to 5 inclusive in the foregoing list satisfy the criteria to be considered in concluding that a 'public act' falls within section 49ZT(1) of the Act. 31Each of these four publications contains one or more phrases that, read in context, has the 'capacity to incite', or the 'effect of inciting', feelings of 'hatred' and/or 'serious contempt' for the persons to whom the phrases refer amongst 'ordinary members' of the 'class to which the publication is directed'. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. The negative reaction that they incite is not merely dislike but hatred and/or serious contempt. 32Examples of these phrases are 'dirty filthy poof' in no. 2, 'dirty filthy faggots' in no. 3, 'child molesters and paedophiles' in no. 4 and 'disease' warranting eradication (such as the product Mortein is claimed to achieve with flies and other pests) in no. 5. 33The 'target' of the phrase or phrases that we have held to contravene section 49ZT is expressly identified as a homosexual person (e.g. Mr Collier) or a homosexual group, such as participants in the Mardi Gras. Furthermore, the 'ground' on which each publication incited hatred and/or serious contempt was the homosexuality of the person or group. The person's or group's homosexuality was 'a substantially contributing factor'. 34We reach the opposite conclusion with regard to publication no. 1, even though it applies epithets such as 'sinful' and evil' to homosexual people. Our reason is that its principal message is that, in the opinion of the writer (Mr Sunol) if not also of other adherents to the Christian faith, homosexuality infringes doctrines of Christianity. To proclaim on a website that, according to some versions of Christian doctrine, homosexuality is a sin and homosexuals are sinners does not, in our opinion, incite hatred and/or serious contempt for homosexual people amongst 'ordinary members' of the 'class' (i.e., internet users) to which the proclamation is 'directed'. It is the reactions of 'ordinary' members of this 'class' that must be considered: see Sunol v Collier (No 2) [2012] NSWCA 44 at [41] and [61], and the discussion in the main decision at [11 - 16]. In making this finding, we take into account the possibility that many of the internet users who consult Facebook pages or 'blogspots' such as that maintained by Mr Sunol might have similar religious views to his. 35For the same reasons as are outlined in the main decision at [60 - 62], we find that none of the four publications satisfying the criteria in subsection (1) of section 49ZT falls within the exception in subsection (2). 36It follows that the dissemination by Mr Sunol of each of nos. 2, 3, 4 and 5 in the above list of publications, but not no. 1, was an act of unlawful vilification on the ground of homosexuality under section 49ZT of the Act. the allegations of victimisation 37The section of the Act defining victimisation, section 50, is set out in the main decision at [66]. For present purposes, it is sufficient to state that this section makes it unlawful for a person ('the discriminator') to subject another person ('the person victimised') to any 'detriment' in any circumstances 'on the ground' that the person victimised has brought proceedings against the discriminator under the Act or has alleged that the discriminator has 'committed an act which, whether or not the allegation so states, would amount to a contravention of this Act'. 38Some of the case law interpreting section 50 is summarised in the main decision at [67 - 70]. The operation of the section is illustrated at [78 - 89]. 39The acts of Mr Sunol that Mr Burns claimed to have amounted to victimisation fell into three categories: (a) the posting of ten publications of text on Mr Sunol's website between 26 October 2011 and 29 April 2012 (these were the subject of Mr Burns' complaints to the Board); (b) the posting of a few more internet publications; and (c) the sending of numerous email messages to Mr Burns during March and April 2012. 40The acts of Mr Sunol within categories (b) and (c) were not alleged in Mr Burns' complaints to the Board. There was no interlocutory grant of leave by the Tribunal to add them to his claim. For reasons stated in Burns v Dye [2002] NSWADT 32 at [8 - 10], we cannot take them into account as additional instances of alleged victimisation. We may, however, treat them as relevant to the question whether any of the internet publications in category (a) were prompted by Mr Burns' conduct in complaining to the Board about Mr Sunol's publications and/or maintaining proceedings relating to them in the Tribunal. The publications about which Mr Burns complained 41We will now reproduce in chronological order the ten publications that were identified in Mr Burns' complaints to the Board (i.e. those in category (a)), together with the relevant file number, some additional material indicating the context of their publication and the dates on which they were published or on which Mr Burns gained access to them. Misspellings and typographical errors are not corrected:- 1. [121050: Under the heading 'I have a court case corning up next Monday 31October 2011 NSW supreme courtt appeal'] 'I want to rid Australia of the Anti vilification laws which are not needed at aIl. If we can not rid Australia of unneeded and abused laws then a real modification is needed to protect all Australians from the abuses who use the Anti-Vilification legislation unethically. They are abused by what I call as Internet thugs and legal abusers, as was done with me through deliberate abuse and misuse of the law in the Collier v Sunol case and now that Gary Burns is trying to do to me now. Gary is carrying on the abuse that Henry did successfully to me which I am going to overturn for the benefit of all Australians and i am using the court systems to do just that.' (26 October 2011) 2. [121050: A comparatively long passage (from which the following extracts are sufficient), appearing under the heading 'I will not apologise to a Gary Burns over false villification complaints he has put agaisnt me to the ADT'] 'Gary! I notice you have put one more false complaint against me to the Administrative Decisions tribunal to me... ... it is very wrong that you are getting professionals to back me for nicks (or free) and very epensive and hight level, a QC with a barrister in the ADT. I know it is wrong very wrong... I would rather go to prison than apologize to Gary and he will get nothing from me at all as I do not care if I am imprisoned of contempt of the law as I show no contempt of the law - this was and is only a political exerside by Gary... I am not willing to apologize to Gary under any circumstance and would rather go to prison that do that as inside prison I can openly let all know that I am being prosecuted by those who want to bring to the world a one world government filled with corruption... For Gary to get so high profile funding which he does not deserve there funding and I ask the question: Who am I for a well known serial litigant and trouble maker Gary Burns to attack me since he normally only attacks high profile people like John Laws, Jeff Kennett and the Nine network footy show over gay vilification issues? What do I have to make me so dangerous that this man has to get funding from senior legal people and why are they setting up such a high profile case. There is no other reason I can accept behind the fact. It is a political exercise to give this man a higher profile in amongst the homosexual lobby community and I have a huge potential to be very dangerous - these goons who are taking me on know this so i intend to keep going the way I am and not give in.' (17 December 2011) 3. [121050: under the heading: 'One topic I will not mention on this blog again, is that of the homosexual activist Gary Burns'] 'This man is unbelievable. He is taking me on for victimisation over answering some of his false complaints about me and eternal winging he does. He is only a bad winger over nothing and a serial litigant who tells lies (blows a mountain out of a mole Hole). I am going to pay him absolutely nothing and fight him through the courts and tribunals all the way (I will physically harm no one as this mongrel man is putting against me. I am not like that and never have been, instead I fight in the courts and use the legal system to answer my critics along with the web. I do not make abuse of the system as this man does either) I never that I would physically harm him and this is a blatant lie. He fears for nothing from me as I am not like that and never have been He deserves nothing from me at all except just a "kick in the ass" from the NSW courts system for blatant Skulduggery and the continual abuse of the courts system - He is a waste of time as he manipuIates the legal system through his skulduggery to get his own way and steal money from others who have alot of publicity "eg Burns vs Laws (2UE)" I can say no more due to legal reasons but when these cases are finished read my writings and you will see.' (31 December 2011) 4. [121050: Under the heading 'One message to all so desired trouble makers who want to take me to court on false accuastyions'] 'I have my house and most of my money tied up in family Trusts - There is no way anyone like that man taking me to the Tribunals again on false charges can touch my money or assets. I have protected myself from thief's like you (Gary) as i put my house and assets in a family trust and others names so that thief's Like you can not get to me So understand this buster. You are a farmer who trodes around the paddock all day overturning dry Cow paddies and washing in the Old wet paddy you find underneath This is all you are Gary" as people like you dig up shit (as with the Cow Pazddies and swim in the shit) and they told lies about me and against me.' (25 January 2012) 5. [121050: Under the heading 'I am being persecuted by a trouble maker called Gary Burns', with the first sentence in large print] 'This man is full of skull duggery and interprets peoples writings in the worst light he can use by using lies and attack those who do nothing to him. He is only out looking for notoriety to big note himself as one of the most wonderful homosexual activist in Australia In reality he is NOT he speaks lies and defames people (like myself) with his misguided and deliberate false interpretations of the activities and writings in public. similar to what he did in the (Laws vs Burns) famous case study for vilification I refuse to give in to this Gary Burns on the pain of going to Prison for contempt of the courts as he has set it all up and interpret what I write wrongly to suit his own agenda. So the case Gary Burns vs John Sunol is not a real case, is is a misuse of the Australian legal system to suit the whims of a trouble maker and those who abuse the civil courts systems all of the time are not real activist, they are only trouble makers who are serial litigants and should not be taken seriously. I refuse to accept guilt and class Gary Burns in the same light as that of Henry Collier when he took me to court. I do not vilify, I do not defame, I do not break the equal opportunity laws and most of all I do not hate gays. This is all a lie purported by this Gary Burns who is falsely accusing me of his own agemda. This man is an evil man, as now he had even got another trouble maker (Helen Gow) from years ago who put false accusations against me at the NSW Tafe when I was going drug and alcohol studies back in 1994 that I was masturbating myself in class. This was proven wrong at this time as I challenge this lie those 18 years ago. Gary is like a farmer who digs up dry Cow Paddies and fussels through the shit that comes out from underneath. so Gary: I will not give in. I will not change and I claim that you are the liar, and you are wrong and I refuse to give in or stop. You will stop this persecution of myself by your own skull duggery and I will not change one little iota.' (29 January 2012) 6. [121058: Under the heading 'Churches today are under serious persecution'] 'It wilI be that people like myseIf speak up against the evils of the New World order and other such situations wilI be put in front of the courts like Henry Collier did to me and Gary Burns is attempting to steaI money through the abuse of the Civil tribunals and courts then to have me made to shut up by the court orders.' (6 February 2012) 7. [121058: Under the heading 'I believe we are living in the last days before Christ returns'] 'These demonic forces knows that I am right and want to stop me - so they bring a trouble maker named Gary to attack me through the courts to try and stop me. Then I tell this Gary I will not stop no matter how much you try and I have God on my side, you must leave your homosexuality and find Christ or your life is doomed When Christ does return which is going to happen. This has been fortold in the past and preached in the churches for many years. Ok then I wiIl speak no moe on this Gary and if he continues putting in complainsts against me I will let it take its time and go trhough the courts system. I do not care about this. The only thing I ask is PLEASE DO NOT LET THIS GET IN THE MEDIA AND MAKE ME A PUBLIC CASE LIKE THAT INFORTUNATE THING THAT HAPPENED TO DAVID HICKS AS IF BECAME NATIONWIDE NEWS PUBLIC FODDER IT WOULD SERIOUSLY EFFECT MY JOB (DRIVING TAXI) AS EVERYONE WOULD KNOW ME IN THE WRONG LIGHT and moe than likely I could not do it fully without trouble. So Gary, You are a trouble maker and an evil homosexual man who is bell bent on abusing the Austrtailan legal sstems corruptly with no regard for humanity. You do now know me I will not hurt you physicaly as you put this, but I need a forum to get out my knowledge and I use this as a forum with the You Tubes So shut your mouth buster and go back to bed and stop telling lies. You need Christ as we all do and the only saviour is Jesus Christ and no one else from any otehr relgiion as they ae all demonic.' (11 February 2012) 8. [121058: Within a comparatively long passage under the heading 'I am one of ther most highly qualified under employed and over qualified Taxi drivers in Australia'] 'No one would take notice due to my older age and the perceptions people Iike Henry Collier put on me by taking me to court unethically and now the Gary Burns who has taken over. These people are liars and I class them law abusers who manipulate the laws to please themselves. So do NOT TAKE NOTICE TO GARY BURNS AS HE DOES NOT KNOW ME AT ALL and i will fight back.' (14 February 2012) 9. [121082: Under the heading 'I had my Taxi authority suspeded for so called inappropriate behaviour'] 'I had my taxi authority suspended for what was deemed inappropriate behaviour in speaking about Muslims and/or homosexuals. I beg to differ over this and will appeal this decision vigorously as I need an income and this is where I get my income from, the taxi driving. I REFUSE TO GIVE IN and that Gay who is fa sly attacking me but let be known I will sit on the computer all day and every day now whilst I am not working writing what I want and he (Gary) can go and get stuffed if he wants me to stop as that is just not going to happen. I do NOT VILIFY HOMOSEXUALS,NEVER HAVE AND HE (GARY) IS JUST A PLAIN STRAIGHT OUT TROUBLE MAKER AND LIAR... I do not blame the officer I made a mistake - which I will accept, but with Gary making false complaints I blame Gay and his co-horts and also Rod Swift for making false complaints about me and setting me up as they hate my guts They know I am right about the homosexuals and especially the Mardi Gras. I will not stop now or ever and never give in I also refuse to apologise to that Gary under any circumstances, as far as I am concerned he can go and get stuffed: bring it on mate and we will fight before the courts and media as I will spend the time now online attacking the Mardi Gras all of the time no matter what He wants or does YOURS DOING THIS IN DEFIANCE TO HIS ACTIONS - that is Gary.' (11 April 2012) 10. [121082: Under the heading 'I just wilI not accept where I went wrong over writings on the homosexual community'] 'I just will not accept that I am wrong. I have been set up for a political purpose and this is orchestrated by Rod Swift, the Henry Collier in the past and now Gay Burns. I will accept nothing else than this Gay Burns is totally and fully wrong and I just will not apologize, stop or give in now or ever And I tell all this GAY BURNS IS A POLITICAL ANIMAL WHO IS TAKING ME TO COURT ON POLITICAL REASONING IT IS NOT MY FAULT AND I WILL NEVER ACCEPT THIS OR BE WILLING TO APOLOGIZE TO THE MAN And If this Gary wins any money against me in the cases, He deserves not a brass Ra zoo and is only a thief who steals money off people by taking them to court on false pretenses and continual abuse of the court system on vilification and/or discrimination issues. I refuse to accept that I am wrong.' (29 April 2012) 42In the copies of email messages sent by Mr Sunol to Mr Burns during March and April 2012 (category (c), as we have called it), Mr Sunol referred on a number of occasions to the fact that Mr Burns had instituted Tribunal proceedings against him. It was not suggested in those messages, or indeed elsewhere in the evidence, that Mr Burns had instituted any Tribunal proceedings against Mr Sunol other than the present proceedings and the proceedings dealt with in the main decision. 43In written and oral evidence, Mr Sunol maintained that his derogatory comments about Mr Burns in the ten publications were not prompted by Mr Burns' complaints to the Board, but by other conduct of Mr Burns, notably (i) the institution and maintenance of AVO proceedings in Waverley Local Court, which were dismissed during September 2011 and (ii) making allegations about Mr Sunol to the 'Ministry of Transport', resulting in the suspension of his licence to drive a taxi. Our conclusions on victimisation 44In our judgment, Mr Burns' claims of victimisation should be upheld in relation to six out of the ten publications of text that we have reproduced: namely, nos. 2 - 5 inclusive, 7 and 10. 45In each of these publications, Mr Sunol used a number of abusive and highly derogatory terms with reference to Mr Burns. In no. 2, he called Mr Burns a 'serial litigant', accused him of wanting to 'bring to the world a one world government filed with corruption' and asserted that he had 'a huge potential to be very dangerous'. In no. 3, he used the phrase 'serial litigant who tells lies' and accused Mr Burns of 'skulduggery' and 'continual abuse of the court system'. In no. 4, he called Mr Burns a 'thief', accused him of 'making false charges' and likened him to a 'farmer' who digs up cow manure and swims in it. In No. 5, he repeated (in substance) almost all of the epithets used in nos. 3 and 4, adding the phrase 'evil man'. In no. 7, a lengthy attack on Mr Burns included the following sentence: 'So Gary, you are a trouble maker and an evil homosexual man who is bell bent on abusing the Australian legal system corruptly with no regard for humanity.' Finally in no. 10, having set out a number of accusations (some in capital letters) against Mr Burns, he described Mr Burns as 'only a thief who steals money off people by taking them to court on false pretences and continual abuse of the court system on vilification and/or discrimination issues'. 46In varying degrees, these six publications, disseminated via the internet, were such, in our opinion, as to cause Mr Burns to feel offended, upset, alienated, angry and anxious (all of these being words used by Mr Burns in his written evidence to describe his reactions). 47In conformity with the Tribunal's determination in Carter v Brown [2010] NSWADT 109 at [154], we are satisfied that they subjected Mr Burns to a 'disadvantage' which was 'not trivial' and which therefore amounted to a 'detriment' under section 50 of the Act. 48We are also satisfied that in each of these publications Mr Sunol referred to the Tribunal proceedings instituted against him by Mr Burns in such a way as to demonstrate that one or more of these proceedings constituted 'at least one of the "real", "genuine" or "true" reasons' (to use the test laid down in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]) for his abusive and derogatory language regarding Mr Burns. 49If there were any doubt on this matter, substantiation can be found amongst the email messages sent to Mr Burns by Mr Sunol during March and April 2012. More than once, Mr Sunol expressed hostility to Mr Burns in highly abusive language, on account of being compelled to defend Tribunal proceedings. 50Some of these findings apply also to three publications (nos. 1, 6 and 8) out of the four that we have held not to constitute victimisation. Through their use of phrases such as 'legal abusers', 'attempting to steal money through the abuse of the civil tribunals and courts' and 'liars', they gave grounds for Mr Burns to feel offended, upset, alienated and angry. Their content and timing indicate that the 'trigger' for them was the institution by Mr Burns of Tribunal proceedings under the Act. 51In our opinion, however, the 'detriment' inflicted by each of these three publications on Mr Burns must be characterised as 'trivial'. Each of them contained little more than a single derogatory imputation about Mr Burns' character or conduct. In each case, the underlying motivation - that Mr Sunol was angry about being made the respondent in legal proceedings instituted by Mr Burns - was immediately apparent to readers, many of whom would therefore be unlikely to pay much attention to the imputation. Accordingly, there was in our judgment no sufficient 'detriment' to support a claim of victimisation. 52Our reason for rejecting Mr Burns' case based on publication no. 9 is that there is no evidence to support a finding that 'at least one of the "real", "genuine" or "true" reasons' for the making of this publication by Mr Sunol was Mr Burns' behaviour in complaining to the Board about him or maintaining proceedings against him in the Tribunal. The event that evidently prompted this publication was Mr Sunol's belief that Mr Burns had made allegations about him to the 'Ministry of Transport', resulting in the suspension of his licence to drive a taxi. 53For the foregoing reasons, we find that publications nos. 2 - 5 inclusive, 7 and 10 by Mr Sunol constituted victimisation of Mr Burns under section 50 of the Act. 54We dismiss Mr Burns' claims of victimisation in so far as they were based on publications 1, 6, 8 and 9 and on internet publications and email messages composed by Mr Sunol during March and April 2012. Remedies The relief claimed 55Mr Burns did not specify clearly the remedies that he sought against Mr Sunol on the ground of unlawful homosexual vilification. In his submissions in the three matters (files 121050, 121058 and 121070) in which he alleged vilification, he referred to the Tribunal's powers under paragraphs (a), (c) and (d) of section 108(2) of the Act to order a respondent to pay compensation, perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant or publish an apology. He then claimed that the 'various orders sought' should be granted. 56The remedies that Mr Burns sought (in files 121050, 121058 and 121082) on the ground of victimisation were: (1) an order for payment of punitive damages or, in the alternative, of 'the maximum aggregate damages in this jurisdiction' to compensate him for the harm that he sustained; (2) an order that Mr Sunol provide a written apology to him; and (3) an order that Mr Sunol give a 'commitment' that he will 'desist from such pernicious public behaviour in the future'. 57As indicated in the main decision at [93], the first of these orders may only be made in the alternative form claimed. Under subsection (2)(a) of section 108, damages may only be ordered 'by way of compensation for any loss or damage suffered by reason of the respondent's conduct'. 58As indicated in the main decision at [95], no provision within section 108 authorises an order requiring a respondent to give a 'commitment'. If instead an injunctive order were to be made, the conduct restrained would have to be limited to 'conduct rendered unlawful by this Act or the regulations': see section 108(2)(b). Evidence relating to these remedies 59In his statements in these four proceedings, Mr Burns alleged that the publications that he claimed to amount to vilification or victimisation caused him to feel 'deeply affronted and hurt', 'offended', upset' 'alienated' and 'angry'. He alleged also that some of the publications that he claimed to have victimised him caused him to feel 'anxious'. 60At the hearing (on 26 and 27 June 2012) of the proceedings to which the main decision relates, he put forward evidence, which Mr Sunol did not challenge, showing that on account of various past events in his life he was especially sensitive to vilification of homosexuals. This evidence is summarised in the main decision at [98]. At [121], the Tribunal stated that this testimony should be accepted even though this claim of special sensitivity was not supported by any medical evidence. 61At the hearing of the present proceedings, neither this testimony by Mr Burns nor any equivalent testimony was given. There was no discussion of the question whether the evidence in these proceedings should include that testimony, or indeed any other evidence admitted in the earlier proceedings. It would not be unfair to Mr Sunol, however, for us to take that testimony into account, because in many other respects the present proceedings were treated as a continuation of the earlier proceedings. 62Mr Sunol's written and oral evidence included the following assertions: (a) he did not 'hate gays'; (b) his published comments about evil and criminal elements in the Mardi Gras were wholly directed at the 'leaders' of this event; (c) he was a supporter of the Christian Democratic Party led by the Reverend Fred Nile MLC; (d) he believed that homosexuality was a sin in the eyes of God; (e) he would never be guilty of violence against Mr Burns or anyone else; and (f) he wished no harm to Mr Burns, but Mr Burns had victimised him by seeking an AVO against him and making false complaints about him to the 'Ministry of Transport'. 63We will now consider in turn each of the remedies sought by Mr Burns. In so doing, we take into account the discussion of remedies under the Act contained in the main decision. Vilification: injunctive relief 64In conformity with conclusions reached on very similar facts in the main decision at [103 - 105], we make orders in the nature of an injunction against Mr Sunol, in the following terms:- 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 on any website, whether or not controlled by him. Vilification: an apology 65In conformity, once again, with the main decision (see [106 - 110]), we order Mr Sunol to publish an apology. 66For the reasons stated in the main decision at [107], which are entirely applicable to these proceedings, the apology to be published will contain both (a) an unqualified acknowledgment that the relevant publications by Mr Sunol unlawfully vilified one or more homosexual people on the ground of their homosexuality and (b) a statement that, as he claimed during the hearing of these proceedings, homosexuality is acceptable as far as he is concerned. 67Our third order in these proceedings is as follows:- 3. Within fourteen (14) days of the date of this decision, the Respondent is to post the following apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 6 January and 1 May 2012, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals 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. Vilification: compensation 68We have outlined above at [59] the kinds of injuries to feelings (or 'non-pecuniary harm') for which Mr Burns claimed compensation. 69In paragraphs [112] to [123] of the main decision, some Tribunal cases on the assessment of damages for injuries to feelings caused by homosexual or racial vilification receive attention. Also discussed are relevant features of publications on the internet. The conclusions reached in those paragraphs are applicable to the present case. 70In the main decision at paragraphs [124] to [126], a distinction is drawn between (a) publications by Mr Sunol that Mr Burns would have come across without any prior warning of their nature and (b) publications to which Mr Burns sought and obtained access (through logging on to a site maintained by Mr Sunol) in the knowledge that their content was likely to be hurtful to him. 71A conclusion then reached in the main decision (at [127 - 131]) is that the damage to Mr Burns's feelings caused by publications in the second of these categories should be assessed at a distinctly lower level than the damage caused by publications in the first category. 72Two reasons for this conclusion are put forward. The first is that in the latter situation Mr Burns could choose whether or not to visit Mr Sunol's website and run the risk of encountering hurtful material. Any obligation on him to do so was at most a moral obligation, stemming from the role that he claims to have taken on as a campaigner for homosexual rights. The second reason is that in this situation his foreknowledge of the likelihood that he might encounter hurtful material would have enabled him to withstand its impact. 73Each of the four vilifying publications in the present proceedings belongs within the second category. They were not 'thrust' upon Mr Burns. He was or felt himself to be impelled by a moral obligation, at most, to visit the site on which they were posted. On each of the four occasions on which he did this, he must be taken to have foreseen that he might suffer the injuries to his feelings for which he now claims damages, and to have been in a position to steel himself against their impact. 74For these reasons, only a small sum by way of damages should be awarded for injuries to Mr Burns' feelings caused by these four publications. A single award of $2,000 is sufficient. 75Our fourth order is as follows:- 4. The Respondent is to pay to the Applicant the sum of $2,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of this decision. Victimisation: compensation 76Amongst the remedies that were claimed by Mr Burns on the ground of victimisation and are permissible under the Act, we will consider compensation first, as it would appear to be the primary remedy contemplated by the Act. 77The matters discussed in the main decision at [135 - 138] are relevant in these proceedings also. In this connection, it is significant that the six publications that in our judgment amounted to victimisation were not 'thrust' upon Mr Burns. The earliest of them occurred on 26 October 2011, well after he became aware that if he logged into one of Mr Sunol's websites he was likely to encounter material offensive to homosexuals. 78Mr Burns relied on the hostile emails sent to him by Mr Sunol during March and April 2012 as reinforcement for his claim for substantial compensation. We observe, however, that he could have chosen not to open these emails and that when he did open any one of them he could have deleted it as soon as he knew the nature of its contents. 79We agree with Mr Burns that one of the victimising publications - no. 2, published on 17 December 2011 - included threatening words ('I have a huge potential to be very dangerous...'). We take this into account in assessing damages, while also pointing out that subsequent events would appear to have vindicated Mr Sunol's assertion (made on 11 February 2012, in publication no. 6) that 'I will not hurt you physicaly (sic)'. 80In the main decision at [139], it is noted that the awards of damages by this and other tribunals in Australia for non-pecuniary harm caused by victimisation have varied between sums in the vicinity of $20,000 and significantly smaller sums such as the amount of $1,000 only. 81Although the epithets applied by Mr Sunol to Mr Burns in the six relevant publications were highly abusive and defamatory, we believe that an award at the lower end of this 'scale' is appropriate. We assess the damages to be paid on the ground of the victimisation involved in these publications at $2,500. 82Our fifth order in these proceedings is as follows:- 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. Victimisation: an apology 83For much the same reasons as underlie our order that Mr Sunol must publish an apology for his conduct amounting to homosexual vilification, we believe that a private apology for his two publications victimising Mr Burns is called for. 84Our sixth order is as follows:- 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol (No 2), has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. Yours faithfully John Sunol. Victimisation: injunctive relief 85As stated earlier, we cannot order Mr Sunol to give a 'commitment' such as Mr Burns claimed. If instead an injunctive order were to be made, the conduct restrained would have to be limited to 'conduct rendered unlawful by this Act or the regulations'. We see no point in formally ordering Mr Sunol to refrain from conduct - i.e. victimisation - that the Act itself expressly prohibits in section 50. 86It is, however, both permissible under the Act and appropriate in the circumstances to order Mr Sunol to remove from every website controlled by him the six publications victimising Mr Burns. 87Our seventh order is as follows:- 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. Costs 88Neither party in these proceedings sought an order for costs. 89The claims made by Mr Burns have succeeded in part only. No other ground for ordering costs under the applicable provision (section 88 of the Administrative Decisions Tribunal Act 1997) is apparent. Accordingly, the parties, who were self-represented at the hearing, must pay their own costs in respect of any representation that they obtained at any other stage of the proceedings. Our orders 90Restated in a single paragraph, the orders that we make are as follows:- 1. Within fourteen (14) days of the date of this decision, the Respondent is to remove the following material from every website controlled by him: (a) the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of the decision; and (b) all material to the same or similar effect concerning homosexual men, lesbians or homosexuality. 2. The Respondent is to refrain from publishing the material described in Order 1 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 apology, attributed to him, on every website controlled by him: - This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 28 November 2012. On various dates between 6 January and 1 May 2012, I published statements on various websites concerning homosexuality and homosexual people. On 28 November 2012, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest. I apologise for publishing these statements. I acknowledge that, although I have no issue with homosexual people or homosexuality, the words that I used vilified homosexuals 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. 4. The Respondent is to pay to the Applicant the sum of $2,000 as compensation for the harm caused to him by the publication, amounting to homosexual vilification, of the statements reproduced as nos. 2, 3, 4 and 5 in paragraph [29] of this decision. 5. In addition to the amount stipulated in Order 4, the Respondent is to pay to the Applicant the sum of $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation, of the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. 6. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders. Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 28 November 2012 and entitled Burns v Sunol (No 2), has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful. I offer my apologies for that behaviour. Yours faithfully John Sunol. 7. Within fourteen (14) days of the date of this decision, the Respondent is to remove from every website controlled by him the statements reproduced as nos. 2 - 5 inclusive, 7 and 10 in paragraph [41] of this decision. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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: 28 November 2012