Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Gaynor [2015] NSWCATAD 211 Hearing dates: 4 September 2015 Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: D Patten, Principal Member Decision: Proceedings dismissed. Catchwords: Homosexual vilification – Public act – where committed. Legislation Cited: Anti Discrimination Act 1977 Interpretation Act 1987 Cases Cited: Dow Jones and Company Inc v Gutnick 210 CLR 575 Collier v Sunol [2005] NSWADT 261 Category: Principal judgment Parties: Bernard Gaynor (Applicant) Garry Burns – (Respondent) Representation: Counsel: P King - (Applicant) Solicitors: R Balzola – (Applicant) Mr Burns – (Respondent in person) File Number(s): 1410372 reasons for decision 1. The proceedings before me originated in an "Application for Stay or Interim Order" filed on 8 December 2014. In effect however, as pointed out by Hennessy DP in her decision published on 20 January 2015, it sought to enliven the summary jurisdiction conferred upon the Tribunal by s102 of the Anti-Discrimination Act 1977 (the Act). That section and section 92 to which it refers provide: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of: (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96. 102 Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b). 1. Hennessy DP refused to make any of the declarations and orders sought.. An appeal from Her Honour's decision was heard by an Appeal Panel on 23 July 2015 (Boland DP, Chesterman PM and Robberds SM). The appeal was allowed by consent and an order was made that the summary proceedings be reconsidered by the Tribunal. 2. When the matter came before me for such reconsideration on 4 September 2015, Mr P King of Counsel appeared for the applicant for summary orders (Mr Gaynor) and Mr Burns, the applicant in the proceedings, appeared for himself. 3. Mr King, without objection read three affidavits viz. that of Robert Balzola (Mr Gaynor's solicitor), sworn 8 December 2014 and two affidavits of Mr Gaynor, respectively sworn 30 January 2015 and 26 March 2015. Obviously the more recent affidavits of Mr Gaynor were not before Hennessy DP. 4. Mr Balzola's affidavit does no more than annex a ten (10) page largely polemical response by Mr Gaynor to four of the complaints by Mr Burns. In light of the view I take of the matter it is unnecessary to make further reference to this affidavit. 5. Before coming to Mr Gaynor's affidavits of 30 January 2015 and 26 March 2015, it is appropriate that I reproduce what Mr King, at the commencement of the hearing stated to be the arguments upon which he intended to rely, viz: 1. The complaints are manufactured and Mr Burns has no interest in maintaining them. 2. The multiplicity of the complaints brought by Mr Burns is vexatious, oppressive and an abuse of process. 3. The Tribunal has no jurisdiction as the alleged unlawful conduct relied upon by Mr Burns occurred in Queensland. 1. The affidavit of Mr Gaynor sworn 30 January 2015 (omitting one paragraph which was objected to and rejected) reads: I am the respondent. I am the registered owner of a website with the address www.bernardgaynor.com.au. At the time of the complaints, the said website in [2] was operated by me from Queensland. The website was constructed for me by Flying Start Kit Pty Ltd as a reseller for VentralP, I connect to my website in [2] via telephony service under a Telstra account to my subscriber number at my residential address in Queensland, The said website in [2] is a moderately visited website. Recorded 'hits* being the access statistics on my website show daily Visits' to be approximately 2,700 per day. Each Visit to my site may be identified by recording the individual IP address of each person accessing the site in [2], Statistics are kept by the host manager, Prior to approximately January 2013 I had never heard of Garry Burns (a.k.a. Gary Burns). 8 My website contains a (blog) and my Facebook wall contains short descriptions of my posts and links to them. 9 It is possible to find my website by searching the Internet by use of any commonly known Internet search engines such as Google™, Yahoo™ or any other equivalent search engine and typing in my name. 10 I refer to the first complaint of Mr Burns to the Anti-Discrimination Board [ADB] of NSW, dated 4 May 2014. 11 Attachments A and B have been downloaded from my Facebook wall. In neither of these attachments have I referred to Mr Burns . 12 Attachment C is a copy of Mr Burns' own web page, which I assume is located in NSW. It shows that on 29-30 April 2014, Mr Burns has allowed Mr Lombardo to comment on his website, including about me and has then responded to that comment by criticising me. I have commented once on Mr Burns' webpage (on 24 October 2013) after he issued a press release about me but this comment is not included in attachment C. 13 Attachment D is an email to the NSW Police from Mr Burns about Mr Lombardo {who I do not know and have never met}, and who is prevented from commenting on my website and Facebook wall. 14 Both Mr Burns and Mr Lombardo have been prevented from commenting on my website. 15 Attachment E is material Mr Burns has downloaded from the website of the Royal Aeronautical Society Melbourne which contains contact details for Mr Lombardo. 16 Tabs 4 and 5 of the ADB material is material downloaded by the ADB at Mr Burns' request as additional information for the first complaint. They contain copies of pages from my website, which I access utilising my domestic telephone connection in Queensland. I assume the ADB accessed my website by utilising their telephone connection. 17 Tab 5 contains two articles that I wrote in relation to the complaints lodged by Mr Burns against Mrs Tess Corbett Mr Burns does not complain that these articles vilify him or homosexuals. 18 The second complaint is dated 6 May 2014. 19 It refers to attachment A which has 4 pages downloaded from my Facebook wall apparently by Mr Bums. 20 The third complaint is dated 18 May 2014. 21 It has one attachment printed from my webpage of 8 pages apparently by the ADB or Mr Burns after visiting the site and printing off pages, 22 The material contained in complaints 2 and 3 do not refer to Mr Burns, 23 In making his complaints to the ADB, Mr Burns accessed my website and then printed off material from his own computer site, or he requested the ADB do this for him. 24 … 25 i have not repeated any of the material on my blog or website or Facebook page complained of by Mr Burns publicly in New South Wales, nor vilified him or homosexuals generally in public or private in New South Wales. 26 The articles that -are the subject of Mr Burns' complaints relate to homosexual political activism and public behaviour at homosexual parades, focusing on events in North America that generated significant media attention and public interest. Taken in context with other articles on my website, the articles complained of by Mr Burns relate to issues of public debate in Australia, including homosexual marriage. 27 In writing these articles on my website, I exercised what I believed was my freedom of political communication under the Commonwealth, as to issues of public and on-going current importance including marriage, homosexuality and its adverse social and family impacts. 28 My views expressed on my blog, genuinely held by me, are founded upon acts and practices that conform to the doctrines, tenets or beliefs of the Catholic Church. 29 My views expressed on my blog are a good faith response to public and political statements and actions undertaken by various homosexual activists, including but not only Mr Burns. I genuinely find that these statements and actions are offensive to my Catholic religious susceptibilities as an adherent of that faith and of the Christian religion 30 I have made, in answering the public and political statements and actions undertaken by various homosexual activists, including but not only Mr Burns, what I believed to be a good faith contribution to public debate in Australia. 31 The address of my web-site and blog do not contain or display any clothing, signs, flags, emblems and insignia by which other persons could observe my views; unless they hit on my site they will not know or be able to observe any such signs, insignias, emblems or views. 32 I have not and did not distribute or disseminate any matter to the public via my website and Facebook wall with knowledge that the matter promotes or expresses 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. Rather, on my blog I expressed my strong disagreement with the views of Mr Burns and others on homosexual marriage and homosexuality generally and my views that marriage is between a consenting male and female, not between male and male. 33 I respectfully say that Mr Burns has impaired my freedom of political communication by his complaint to the ADB, and that the State law on which he and the ADB relies to pursue me prevents me expressing my views and restricts the exercise of my religion. 1. The affidavit of 26 March 2015 seems to me largely irrelevant to the matter before me but paragraphs six (6) to nine (9) give some context to the proceedings: Communications and publications from Garry Burns 6 I have commented once on Garry Burns' webpage on 24 October 2013. 7 I have not contacted Garry Burns since that date, nor at any time prior. 8 Garry Burns has made approximately 400 public statements regarding me or the complaints he has lodged against me. This equates to approximately 1,000 pages of public comment. a. Garry Burns has sent 228 emails between 21 August 2014 and 3 March 2015 (see Annex A). This includes 48 emails sent to me after Garry Burns acknowledged receipt of a letter from my solicitor directing him to cease communicating with me on 27 October 2014, (see Attachment B). b. Garry Burns has sent two letters to me, dated 23 November 2014 and 3 December 2014 (see Annex B). c. Garry Burns has published 60 posts on his website between 20 October 2013 and 4 March 2015 (see Annex C). d. Garry Burns has published 56 posts on his Facebook page between 29 April 14 and 4 March 2015 (see Annex D). e. Garry Burns has published 55 posts on his Twitter page between 20 October 2014 and 4 March 2015 (see Annex E). f. There have been 6 comments left on my website sent from email addresses and IP addresses associated with Garry Burns between 20 October 2013 and 31 January 2015 (see Annex F). g. The communications on Garry Burns' Facebook page and Twitter page reflect publications on his website. His website reflects many statements made in his emails. Content of Garry Burns' communications 9 I believe the content of Garry Burns' communications falls into various categories (with some overlap). I believe these communications demonstrate Burns' view and motives against me that seek to harass, annoy and cause embarrassment and financial cost. 1. Mr Gaynor was called to the witness box and Mr Burns had the opportunity to cross examine him. He was not challenged on his evidence that all his physical acts in relation to the case were performed upon his computer in Queensland. He conceded however, that material he posted in Queensland was able to be accessed by others throughout the world , including in NSW, by logging on to his web site. 2. The complaints by Mr Burns involve alleged contraventions of sections 49ZS and 49ZT of the Act: 49ZS Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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. 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite 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. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 1. Section 49ZT is to be construed in the light of s31 of the Interpretation Act 1987: 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament (1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. (2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument. 1. On the issue of the Tribunal's jurisdiction Mr King submitted, correctly in my opinion, that the public act referred to in section 49ZT must occur within NSW. That gives rise to the question whether the posting of material on a computer in Queensland, capable of being downloaded in NSW, constitutes a "public act" in NSW within the meaning of s49ZT. Mr King did not refer me to any authority directly on this point. However, he did refer to Collier v Sunol [2005] NSWADT 261 as authority for the proposition that posting material on a website constitutes a public act within s49ZS of the Act. 2. Mr Burns referred to Dow Jones and Company Inc v Gutnick 210 CLR 575. That case concerned alleged defamatory material published by Dow Jones concerning Mr Gutnick in circumstances where the material complained of and generated by Dow Jones, was housed on a computer server in the USA. It was available to be downloaded in Australia by subscribers to the Dow Jones service and others able to provide a user name and password. Principally the case concerned the proper forum for Mr Gutnick to maintain proceedings in defamation to vindicate his reputation. 3. The primary judge in Victoria held that the material was published in Victoria when downloaded by Dow Jones subscribers. He rejected the proposition that publication occurred at the servers maintained by Dow Jones in the USA. In the course of their judgment the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said (footnotes omitted): 38. In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication. 39. It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction. 40. Because publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published, publication to numerous persons may have as many territorial connections as there are those to whom particular words are published. It is only if one starts from a premise that the publication of particular words is necessarily a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by the several places in which the publication is available for comprehension. 41. Other territorial connections may also be identified. In the present case, Dow Jones began the process of making material available at WSJ.com by transmitting it from a computer located in New York city. For all that is known, the author of the article may have composed it in another State. Dow Jones is a Delaware corporation. Consideration has been given to these and indeed other bases of territorial connection in identifying the law that might properly be held to govern an action for defamation where the applicable choice of law rule was what came to be known as the proper law of the tort. 42. Many of these territorial connections are irrelevant to the inquiry which the Australian common law choice of law rule requires by its reference to the law of the place of the tort. In that context, it is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action) that require rejection of Dow Jones's contention that publication is necessarily a singular event located by reference only to the publisher's conduct. Australian common law choice of law rules do not require locating the place of publication of defamatory material as being necessarily, and only, the place of the publisher's conduct (in this case, being Dow Jones uploading the allegedly defamatory material onto its servers in New Jersey). 43. Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is "where in substance did this cause of action arise"? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt. 44. In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed. 1. Mr King submitted that Dow Jones is not applicable in this case. There seem to me to be important differences. The alleged vilification did not identify the plaintiff except by reference to a class of persons (homosexuals) of which he claimed to be a member. On the other hand the High Court, in the context of an action in defamation, was considering questions such as where the alleged defamatory material was published, where the tort was completed, and Whether Victoria was an inappropriate location for legal proceedings based upon the alleged defamation. Here, as it seems to me, the only question is the place where the relevant public act by Mr Gaynor occurred. 2. The High Court recognised (Dow Jones, para. 40) that publication involves at least two parties who may be in different territorial jurisdictions. In my view that conclusion is important in this case in that it recognises that publication of actionable material involves at least two parties who may be in different jurisdictions. So it was in this case Mr Gaynor in Queensland, Mr Burns in NSW. 3. In my opinion there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns' argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion such a circumstance is beyond the reach of the NSW Parliament. 4. Accordingly, I hold that, on the unchallenged evidence, there was no public act in NSW by Mr Gaynor which could constitute the unlawful conduct proscribed by s49ZT of the Act. Mr Gaynor has established his entitlement to an order under s102 of the Act as the proceedings before the Tribunal are misconceived. 5. Although it is unnecessary to consider the other matters argued by Mr King in my view neither would succeed. On the face of it Mr Burns falls within sections 87A and 88 of the Act and was entitled to make the complaints whatever his motive or intent. 6. As to whether the multiplicity of complaints alone renders them vexatious that is not, I think, a matter which can be decided in summary proceedings. In my opinion it does not necessarily follow that a multiplicity of proceedings on similar grounds constitutes vexation. 7. Finally, I refer to Mr King's application that the Tribunal make an order which extends beyond the matters actually before it and seeks to restrict the right of Mr Burns to initiate further proceedings. I am not persuaded that the Tribunal has power to make such an order even if minded to do so. 8. The only order I make is that the proceedings before me are dismissed as misconceived. There should be no order as to costs. ********** 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 Amendments 14 October 2015 - correction of file number 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: 14 October 2015