Burns v Sunol (No2) [2014] NSWCATAD 126

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Sunol (No2) [2014] NSWCATAD 126 Hearing dates: 30 July 2014 Decision date: 03 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President A Lowe, General Member M Nasir, General Member Decision: The tribunal orders Mr Sunol to pay Mr Burns $2,500 for breaching orders 3 and 4 of the Tribunal's orders dated 14 May 2014. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL -enforcement of orders made under the Anti-Discrimination Act 1977 - homosexual vilification and victimisation - non-compliance with conduct orders - remedies for breach of orders Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Burns v Sunol [2014] NSWCATAD62 Category: Principal judgment Parties: Garry Burns (Applicant) John Sunol (Respondent) Representation: G Burns (Applicant in person) J Sunol (Respondent in person) File Number(s): 131095

reasons for decision

Introduction 1On 14 May 2014 the Tribunal found that complaints under the Anti-Discrimination Act 1977 (NSW) by Mr Burns against Mr Sunol had been substantiated. The Tribunal ordered that Mr Sunol apologise to Mr Burns and remove homosexually vilifying material and material which victimised Mr Burns from websites controlled by him. The Tribunal also ordered Mr Sunol to refrain from publishing further material "to the same or similar effect": Anti-Discrimination Act s 108(2)(b). In default of compliance with those orders within 14 days, the Tribunal ordered that Mr Sunol pay Mr Burns $2,500: Anti-Discrimination Act, s 108(9). 2The Tribunal also ordered Mr Sunol to pay damages of $1,000 for breaching the homosexual vilification provisions and $5,000 for breaching the victimisation provisions of the Anti-Discrimination Act. Mr Sunol has not complied with these orders but the Tribunal does not have power under s 108 to order a person to pay further damages if he or she does not pay the amount the Tribunal originally ordered. The Tribunal's orders in Burns v Sunol [2014] NSWCATAD62 (the Tribunal's first decision) are set out in full at the end of these reasons. 3The matter was listed on 9 July 2014 at 10 am to determine whether Mr Sunol had complied with the Tribunal's conduct orders, that is, orders 3, 4 5 and 9. Mr Sunol complied with the orders to apologise publicly on his website and personally to Mr Burns by letter (orders 5 and 9). Mr Burns submitted that Mr Sunol had not complied with orders 3 and 4, to remove the vilifying and victimising material identified by the Tribunal in its first decision from websites controlled by him and to refrain from publishing further material "to the same or similar effect." 4Mr Sunol did not appear at the hearing which commenced at 10 am. He did appear in another matter also involving Mr Burns at 2 pm on the same day. He told the Tribunal in that matter that he did not realise that the current matter was on at 10 am and that if he had realised he would have attended. The Tribunal directed Mr Burns to serve him Mr Sunol with the evidence on which he relies in these proceedings (Exhibits A to P) and for Mr Sunol to file any evidence or submissions in reply by 30 July 2014. Mr Sunol did file submissions in reply on 21 July 2014 even though he mistakenly indicated that those submissions related to a different matter.