Burns v Sunol [2014] NSWCATAD 192

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 192 Hearing dates: 30 July 2014 Decision date: 10 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President J Newman, General Member N Hiffernan, General Member Decision: Mr Sunol is 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] NSWCATAD61 Category: Principal judgment Parties: Garry Burns (Applicant) John Sunol (Respondent) Representation: G Burns (Applicant in person) J Sunol (Respondent in person) File Number(s): 131062

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 $2,000 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] NSWCATAD61 (the Tribunal's first decision) are set out in full at the end of these reasons. 3The matter was re-listed on 9 July 2014 at 2 pm to determine whether Mr Sunol had complied with the Tribunal's conduct orders, that is, orders 3, 4, 5 and 9. We are satisfied that Mr Sunol has partially complied with order 3 because he has removed the unlawful material identified in Orders 1 and 2. The question remains as to whether he has removed all material "to the same or similar effect" on any website controlled by him. We are satisfied that Mr Sunol has complied with orders 5 and 9 which involve apologising to Mr Burns on Mr Sunol's website and by letter. Mr Burns submitted that Mr Sunol had not complied with order 4, to refrain from publishing further homosexually vilifying or victimising material "to the same or similar effect" on any website controlled by him.