Sunol v Burns [2018] NSWCATAD 259

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sunol v Burns [2018] NSWCATAD 259 Hearing dates: 19 October 2018 Date of orders: 08 November 2018 Decision date: 08 November 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: The Hon F Marks, Principal Member Decision: Application dismissed Catchwords: Contempt – application for referral to Supreme Court – publication by respondent of alleged contemptible material made to Registrar –publication of contemptible material made by Tribunal within Reasons for Decision – held conduct capable of constituting contempt of the Tribunal-held further not appropriate to make referral to Supreme Court – application dismissed. Legislation Cited: Civil and Administrative Tribunal Act Cases Cited: Burns v Sunol (No 2) [2017] NSWCATAD 236 Burns v Sunol [2018] NSWCATAD 78 Attorney- General v Times Newspapers [1974] AC 273 Category: Principal judgment Parties: John Christopher Sunol (Applicant) Garry Burns (Respondent) Representation: Applicant Self Represented Respondent Self Represented File Number(s): 2018/0015 4165 Publication restriction: Nil

reasons for decision

Background 1. By application made on 11 May 2018 the applicant, John Christopher Sunol sought an order that this Tribunal refer to the Supreme Court of NSW pursuant to the provisions of section 73 of the Civil and Administrative Tribunal Act ("the Act") certain material which the respondent, Garry Burns had published and which he alleged was in contempt of this Tribunal. 2. Section 73 of the Act is in the following terms; 73 Contempt of Tribunal (1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note. Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission. (3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal. (4) For the purposes of this section: (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied. Note. Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section. (5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination. (6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate. 1. The publication of which the applicant complained was said to consist of a letter which the respondent had written to the Registrar of this Tribunal in connection with proceedings in which he was involved as the applicant and to which the applicant was respondent, which were related in some manner to an earlier decision of the Tribunal between the same parties. In that earlier decision which is reported as Burns v Sunol (No 2) [2017] NSWCATAD 236, the respondent had been partially successful only. The letter to the Registrar in the then current proceedings referred to that earlier decision as "incongruous and discombobulated rubbish", named the two Members of the Tribunal who had determined those proceedings and said that they "should not sit on any cases where I'm the Applicant from this date forth." 2. A copy of the respondent's letter to the Registrar has not been produced by the applicant, and the only available public information concerning its contents was made available by the Tribunal when it published its Reasons for Decision. 3. Before setting out the relevant parts of that earlier decision, I should first refer to some additional background information. There is a long and bitter history of litigation before the Tribunal and its predecessor between the respondent and applicant over many years. In general terms, the applicant has maintained an Internet site on which he, and perhaps others, have published certain material about which the respondent has made complaints under the relevant Anti-Discrimination legislation. The publication of this material and the making of these complaints has led to a series of matters before this Tribunal in which, it must be observed, the respondent has been successful on many occasions. This has led to the respondent securing costs orders in his favour against the applicant, which have not been met and which have led to the eventual bankruptcy of the applicant. Information furnished during the course of these proceedings by the applicant indicates that he remains a bankrupt. 4. The asserted continuing failure of the applicant to comply with many orders of this Tribunal requiring him to publish apologies and to desist from the publication of further offensive material led to an application brought by the respondent against the applicant for referral of certain matters to the Supreme Court under section 73 of the Act. As a result of that application, the Tribunal determined to refer a number of matters to the Supreme Court in Burns v Sunol [2018] NSWCATAD 78. ("The referral decision"). That decision sets out in some detail a summary of the litigation between these parties.