Burns v Gaynor [2015] NSWCATAD 24

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Gaynor [2015] NSWCATAD 24 Hearing dates: 20 January 2015 Decision date: 20 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The applicant's application that the complaints be summarily dismissed is refused. Catchwords: ANTI-DISCRIMINATION – homosexual vilification – application for summary dismissal – frivolous, vexatious or lacking in substance – whether conduct by respondent means that purpose of proceedings is to annoy or harass applicant Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Crewdson v Niland (EOD) [2002] NSWADTAP 5 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Langley v Niland [1981] 2 NSWLR 104 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 6/3/98 Category: Principal judgment Parties: Bernard Gaynor (Applicant) Garry Burns (Respondent) Representation: Solicitors:

Robert Balzola and Associates (Applicant) G Burns (Respondent in person) File Number(s): 1410372

Judgment

Interlocutory 1. DEPUTY PRESIDENT: I am going to make a decision. The decision is that I refuse the application to dismiss the proceedings on the grounds that they are frivolous, vexatious or lacking in substance. 2. Although the application identified six orders under various statutory provisions, Mr Gaynor's solicitor agreed at the commencement of the hearing that the only provision under which this Tribunal has jurisdiction to make the kind of order he sought is s 102 of the Anti- Discrimination Act 1977 (NSW). That provision allows the Tribunal to dismiss at any stage of proceedings a complaint on the same grounds that the President of the Anti-Discrimination Board may dismiss it under various subsections of s 92, including that the complaint is frivolous, vexatious, misconceived or lacking in substance. 3. Mr Burns has brought three complaints of homosexual vilification against Mr Gaynor. Those complaints were referred by the President of the Anti-Discrimination Board to the Tribunal. He has filed Points of Claim, a statement and submissions in relation to those complaints. The task of the Tribunal today is to determine whether any of those complaints or parts of the complaints should be dismissed because they are frivolous, vexatious, misconceived or lacking in substance. 4. It became evident during oral submissions that Mr Gaynor's main point was that the complaints should be dismissed as frivolous or vexatious because their purpose is to annoy and harass rather than having any bona fide purpose under the Anti-Discrimination Act. I will also deal in these reasons with submissions that the complaints lack substance. 5. The general principles to be applied are that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30; Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 at [34]. The applicant's case is to be taken at its highest when determining whether the complaint lacks substance: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. A complaint is misconceived or lacking in substance if there is no factual basis for the allegations, or the allegations lack merit: Langley v Niland [1981] 2 NSWLR at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 6/3/98.. A proceeding can be vexatious if it is instituted with the intention of annoying or embarrassing the person against whom they are brought." Crewdson v Niland (EOD) [2002] NSWADTAP 5 at [31]. 6. As well as the President's report, the evidence on which Mr Gaynor relies is contained in two affidavits – one from himself dated 20 January 2015 and the second from his solicitor, Mr Balzola, dated 8 December 2014. Mr Balzola's affidavit annexes a document headed "Response to Complaints". It is addressed to the Anti-Discrimination Board and was written by Mr Gaynor. It criticises the Board's investigation and decision making processes and accuses Mr Burns of deceit. It then addresses Mr Burns' first complaint saying that the material the subject of that complaint is not material that he has published. He says the author is Mr McKee and that he no longer allows Mr McKee to publish comments on his website. 7. In relation to the second complaint, Mr Gaynor writes that that complaint relates to statements on his Facebook page regarding the Victorian government's decision to pass laws expunging criminal records of homosexuals. According to Mr Gaynor, the Anti-Discrimination Act does not give the Anti-Discrimination Board power to investigate citizens of other states for making comments about laws passed by their parliaments. He alleges that Mr Burns uses aliases when commenting and his purpose is to "entrap opponents and lodge complaints against them." 8. In relation to complaints of victimisation against Mr Gaynor, he says that he did not refer to Mr Burns by name when criticising him. He then lists allegations that Mr Burns published emails and press releases which refer to Mr Gaynor in a highly derogatory manner. He suggests that the President of the Anti-Discrimination Board may wish to investigate Mr Burns for vilifying homosexuals. Mr Gaynor concludes by asserting that given Mr Burns' decision to publish this material it is "completely unreasonable" for him to complain that he is identifiable as the person taking action against me." 9. Mr Gaynor's affidavit dated 20 January 2015 was tendered at the hearing. I told his solicitor, Mr Balzola, that given the volume of material and the late tender, he needed to take me to each matter on which he relied and they would be the matters that I would take into account. At paras 13 to 17 of the affidavit Mr Gaynor highlights some of the matters on which he relies. At p 96 of the President's Report, Mr Gaynor makes various points about publications that Mr Burns has made. He also took me to several examples of words allegedly written by Mr Burns criticising people and organisations in the attachments to the affidavit. 10. Some of those publications are about ACON, the Aids Council of New South Wales. It is alleged that in January 2011 Mr Burns published material on his blog referring to gay newspapers as "dance bunny publications" and that, in relation to ACON, he is "embarrassed by the bullying tactics of the homosexual community," was "concerned that the mainstream media may fear reporting on ACON's outrageous conduct for fear of being branded homophobic" and believes "ACON is aiding and abetting illegal drug use." Mr Gaynor alleges that he stated that it would be better "if ACON was bulldozed to the ground." He also alleged that Mr Burns asked in relation to Mr Sunol, a man against whom he has brought proceedings under the Anti-Discrimination Act, whether he was "really a covert poof?" 11. It is also said that Mr Burns wrote an article entitled 'Confirmed Paedophiles using ACON's Facilities' and that in that article he stated that "they could be grooming young boys for sex" at meetings held at ACON premises. Mr Gaynor drew my attention to a Facebook post said to be from Mr Burns' website from 27 April 2014, saying that Russian extremists were "lowlife cunts (who) should be hung up by their dirty foreskins until they are dead." 12. Mr Gaynor highlighted the number of homosexual vilification complaints Mr Burns has made, estimated to be "60 or 70" as supporting his claim that the complaints against him are vexatious. 13. I will deal firstly with the application that the complaints should be dismissed because they lack substance. The first matter relates to a publication appearing at p 10 of the President's Report. Mr Gaynor alleges that the words "exterminate the homos" was a phrase that Mr Burns himself wrote. There is a dispute about whether or not this comment was put on Mr Burns' Facebook by him or whether those words can be attributed to another person. 14. The second matter relates to the jurisdiction of the Tribunal to deal with this complaint in circumstances where Mr Gaynor lives and works in Queensland and the subject matter of the complaint was published by him in that state. Thirdly it is said that Mr Gaynor is not the publisher of material that has been posted by others on his webpage or that is linked with his blog. 15. The first matter is not a matter which justifies the Tribunal dismissing the complaint summarily. It is a disputed question of fact which a tribunal hearing this case is in a much better position than the Tribunal today to determine. It relates to one of many dozen allegations of publications on Mr Gaynor's website. The other matters relate to the meaning of the term "public act" in s 49ZT of the Anti-Discrimination Act. There is legal authority on each of the questions Mr Gaynor raises. While the points he makes may be arguable, he did not bring to my attention any binding legal authority which would suggest that the allegations Mr Burns has made are not "public acts" of Mr Gaynor. 16. I deal next with the submission that the complaints are frivolous or vexatious. Mr Gaynor provided several examples of things that Mr Burns is purported to have written that he says demonstrate that Mr Burns himself is publishing material that is unacceptable and that in some cases would also amount to a breach of the homosexual vilification provisions of the Anti-Discrimination Act. It is not apparent in relation to any of those matters that they would on their face constitute a breach of s 49ZT, but it is not my role today to make any final determination about that issue. Certainly they could be regarded as insulting and derogatory comments about Russian extremists and about the AIDS Council of New South Wales and others. 17. Without seeing the full articles which Mr Gaynor refers to, it is difficult to understand the context of Mr Burns' criticisms, but, as he said in his submissions, ACON is not a homosexual person, it is an organisation. It is not a breach of the Anti-Discrimination Act to criticise an organisation for its policies or procedures. Similarly, there is nothing to prevent Mr Burns from making derogatory or abusive comments about Russian extremists or indeed, in general terms, about any other person. What is unlawful is vilifying a person on the ground, for example, of their race or homosexuality. None of the material that has been brought to my attention would, on a preliminary view, reach that threshold. In any case, that is not the issue when determining whether Mr Burns' complaints about Mr Gaynor are vexatious. The issue is whether Mr Burns' purpose or motivation in bringing these complaints is to annoy or harass Mr Gaynor. 18. I accept Mr Burns' evidence that his purpose is to make those responsible for publication of unlawful material responsible for their actions. Of course, in these proceedings I make no findings about the lawfulness or otherwise of any of the complaints Mr Burns has made. That is a matter for the tribunal hearing this matter. My only role today is to determine whether they should be summarily dismissed without a hearing. Even if Mr Burns has strongly criticised, insulted and abused others, that does not satisfy me that his motivation for bringing complaints about others is to harass or annoy them. Furthermore, the complaints are not so weak that that inference can be drawn. Nor does the sheer number of complaint that Mr Burns has brought, especially in circumstances where many have been upheld, justify summarily dismissing these complaints. 19. I refuse Mr Gaynor's application for costs as there are no special circumstances justifying an award of costs: Civil and Administrative Tribunal Act 2013 (NSW), s 60. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar