Burns v Sunol [2014] NSWCATAD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 2 Hearing dates: 5 July 2013 Decision date: 22 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Ms J Newman, General Member Mr N Hiffernan, General Member Decision: 1. The following complaints of homosexual vilification are substantiated: the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications. 2. The following complaints of homosexual vilification are not substantiated: the fourth (paras 2, 4 and 5), fifth, sixth, eighth (para 1) and eleventh publications. 3. The following complaints of victimisation are substantiated: the fourth (paras 2, 4 and 5), fifth (1st comment), sixth and seventh publication or comment. 4. The following complaint of victimisation is not substantiated: the fifth publication (2nd comment). 5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect: The first publication - set out at [30] above The second publication - set out at [31] above The third publication (YouTube clip) - set out at [32] above The first and third paragraphs of the fourth publication - set out at [33] above The seventh publication - set out at [37] above The second passage in the eighth publication - set out at [38] above The ninth publication - set out at [39] above The tenth publication - set out at [40] above. 6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him. 7. Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him: This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 22/1/14. On various dates between 9 November 2012 to 2 January 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people. On 22/1/14 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT 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. I apologise for publishing these statements. I acknowledge that 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. 8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. 9. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,500 for the homosexual vilification. 10. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect: The fourth publication (paras 2, 4 and 5) - set out at [33] above The sixth publication - set out at [35] above 11. Mr Sunol is to refrain from publishing the material described in Order 10, or material to the same or similar effect, on any website, controlled by him. 12. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows: Mr Gary Burns PO Box 77 PADDINGTON NSW 2021 Dear Mr Burns The NSW Civil and Administrative Tribunal, in a decision dated 22/1/14 and entitled Burns v Sunol, 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 13. In default of compliance with Orders 10, 11 or 12, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders. 14. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $3,000 for the victimisation. 15. This matter is to be re-listed on 21 February 2014 at 9.30am to determine whether Mr Sunol has complied with these Orders. Catchwords: ANTI-DISCRIMINATION - racial vilification and victimisation - meaning of incite Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Racial and Religious Tolerance Act 2001 (Vic) Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92-313 Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42 Burns v Laws (No 2) [2007] NSWADT 47 Category: Principal judgment Parties: Garry Burns (Applicant) John Sunol (Respondent) Representation: In person (Applicant) In person (Respondent) File Number(s): 131012