Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 61
• Hearing dates: 4 October 2013
• Decision date: 14 May 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: N Hennessy LCM, Deputy President; J Newman, General Member; N Hiffernan, General Member

Decision

1. The following publications constitute homosexual vilification: Publication 1 (bold font), Publication 5, Publication 7 (excluding the publication of the YouTube video).

2. The following complaints of victimisation are substantiated: Publication 1 and Publications 3-11.

3. Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him including Facebook and all material to the same or similar effect.

4. Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him.

5. Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.

On various dates between 7 November 2012 and 7 May 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people.

On 14 May 2014 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

6. In default of compliance with Orders 3, 4 or 5, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

7. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,000 for the homosexual vilification.

8. Within 28 days Mr Sunol is to pay Mr Burns $2,000 for the victimisation.

9. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows:

Mr Gary Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The NSW Civil and Administrative Tribunal, in a decision dated 14 May 2014 entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

John Sunol

10. In default of compliance with Orders 7, 8 or 9 within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

11. This matter is to be re-listed on 9 July 2014 at 2pm to determine whether Mr Sunol has complied with these Orders.

• Catchwords: ANTI-DISCRIMNIATION - racial vilification and victimisation - remedies
• Legislation Cited: Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013; Defamation Act 2005; Racial Discrimination Act 1975 (Cth)
• Cases Cited: Burns v Sunol (No 2) [2012] NSWADT 247; Burns v Sunol (No 2) [2014] NSWCATAD 44; Burns v Sunol [2012] NSWADT 246; Burns v Sunol [2014] NSWCATAD 2; Collier v Sunol [2005] NSWADT 261; Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; Gamester Pty Ltd v Lockhart (1993) 112 ALR 623; 67 ALJR 547; Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19; Jones v Toben [2002] FCA 1150; Jones v Trad [2013] NSWCA 389; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92; Re Media Entertainment and Arts Alliance; ex parte Hoyts Corp Pty Ltd (1994) 119 ALR 206; Trad v Jones & anor (No 3) [2009] NSWADT 318
• Category: Principal judgment
• Parties: Gary Burns (Applicant); John Sunol (Respondent)
• Representation: G Burns (Applicant in person); J Sunol (Respondent in person)
• File Number(s): 131062

reasons for decision

Introduction

1 Mr Burns complains that Mr Sunol has vilified him and other homosexual men in breach of the Anti-Discrimination Act 1977 (NSW) (the Act). Most of the allegedly vilifying publications were posted on Mr Sunol's blog - www.johnsunol.blogspot.com.au. Mr Burns also complains that Mr Sunol has victimised him in breach of the Act for complaining about him. The alleged victimisation is derogatory comments about Mr Burns on Mr Sunol's websites including his Facebook page.

2 Mr Burns has made numerous complaints of vilification and victimisation against Mr Sunol. In 2012 the Administrative Decisions Tribunal (ADT) determined eight complaints in two decisions: Burns v Sunol [2012] NSWADT 246 and Burns v Sunol (No 2) [2012] NSWADT 247. We will call the first of these decisions "the Tribunal's 2012 decision". In both those cases the ADT found parts of Mr Burns' complaints to have been substantiated. Orders were made for Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and pay damages by way of compensation. Mr Burns says Mr Sunol has not complied with these orders.

3 This decision relates to complaints which were heard on 4 October 2013. Another complaint involving similar allegations was heard on 5 July 2013: Burns v Sunol [2014] NSWCATAD 2. We will refer to the decision in relation to that complaint as "the Tribunal's January 2014 decision." In that case the Tribunal again found parts of Mr Burns' complaints to have been substantiated. Orders were made for Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and to pay damages by way of compensation. Mr Sunol has not fully complied with two of those orders and has been ordered to pay a further $5,000 in damages: Burns v Sunol (No 2) [2014] NSWCATAD 44.

4 On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to hear complaints under the Act was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT). In accordance with cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW), this complaint is a "part heard" proceeding. The provisions of the Anti-Discrimination Act 1977 continue to apply.

Homosexual vilification provisions

5 It is unlawful to publicly vilify a person on the ground of homosexuality. Section 49ZT(1) of the Act states that:

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.

6 A public act is defined in s 49ZS:

A public act is defined in s 49ZS as follows:

"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.

7 Certain exceptions are set out in s 49ZT(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.

8 The party seeking to prove an exception has the onus of proof: s 104. Although Mr Sunol did not rely on any exceptions, when prompted by the Tribunal he said that he relied on the exception for a "fair report" of a public act in relation to a hyperlink on his blog to a video about the teachings of the Westboro Baptist Church. Except in a criminal trial, there is no requirement for a decision maker to point to arguments or evidence that may assist a self-represented party: Forge v Australian Securities and Investments Commission (2004) 213 ALR 574 at [11] citing Re Media Entertainment and Arts Alliance; ex parte Hoyts Corp Pty Ltd (1994) 119 ALR 206; Gamester Pty Ltd v Lockhart (1993) 112 ALR 623; 67 ALJR 547. In this case because of his limited capacity to represent himself effectively the Tribunal did raise the possibility that Mr Sunol may wish to consider relying on the 'fair report' defence.

9 Mr Burns has standing to make a complaint of homosexual vilification because he is a homosexual person: s 88.

Homosexual vilification - legal principles

10 The legal principles which apply to the homosexual vilification provisions were summarised in the Tribunal's January 2014 decision at [27] and [28]. The conclusions reached in that decision incorporate principles enunciated by the Tribunal in its 2012 decision and include the principles in the subsequent decision of the Court of Appeal in Jones v Trad [2013] NSWCA 389:

. . . as a general principle, vilification provisions should be interpreted conservatively in keeping with the high value that the common law places on freedom of expression: Sunol v Collier (No 2) [2012] NSWCA 44 at [59]; Jones v Trad [2013] NSWCA 389 at [27]. When considering whether a matter is in breach of s 49ZT(1), the following questions need to be addressed:

(1) What is the relevant act and is that act a "public act"?

(2) Does that act incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people?

(3) Is the incitement on the ground of the homosexuality of the person or members of the group?

In relation to the second question, the following principles of construction should be applied:

(1) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.

(2) It is not necessary for a contravention that a person actually be incited. The test is an objective one.

(3) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must have the capacity or effect of inciting such emotions in an ordinary member of the class to whom it is directed.

(4) If there is specific evidence about the audience, it will be necessary to make a finding of fact as to the nature of the audience to whom the public act is directed.

(5) It will also be necessary to consider whether the public act would reach the mind of an ordinary member of that audience as something that would encourage the requisite emotion.

Complaints of homosexual vilification

Introduction

11 Mr Burns' complaint is about seven separate publications posted between 7 November 2012 and 7 May 2013 on websites controlled by Mr Sunol. Unless otherwise indicated, the material was published on Mr Sunol's internet page. There is no dispute that Mr Sunol wrote the text himself. The relevant parts of the publications about which Mr Burns complains are set out below, in chronological order. Each publication has a heading indicating when the publication was made.

12 We have set out the publications verbatim including all spelling and grammatical errors. For some of the longer publications we have put the relevant text in bold font and included surrounding text for context. For the shorter publications, the entire publication is said to offend the homosexual vilification provisions. The message that the publication conveys must be determined in isolation, without reference to the messages conveyed by any of the other publications. But each publication must be read in context: Tribunal's 2012 decision at [32].

Content of publications

(1) First publication - 12 November 2012

child abuse royal commission needs to go a lot further than just the Catholic church

Yes

If child abuse or sexual molestation is found in parts of the Roman Catholic church, they must be dealt with according to law.

But

I am afraid that this child abuse goes a lot further than just ther church

The church is only one institution I has occurred to on some occasions and this is not the only place

Let alone child abuse and drug dealing is rampart in other areas of lifestyle and events. Namely one organization much bigger and larger than the catholic church is that of Gay nad Lesbian Public events, such as the, Sydney Gay and Lesbian Mrdi Gras and the yearly sleazeball in October every year and all associated events. This is also run by brought about by drug dealers and pornography dealers into child sex port as well as other such thngs. Other areas such as the ex inustray legal and uillegal brothels and sex shops should also be inviestigatwed. These should also be investigated completely and when the purpentrators are found they should be brought to justice with there criminal acitivites closed down for good At least that repugnant sleaze ball. And all associated sex shops and brothels should be investigated as well. I will not shift from this as this is fact.

(2) Second publication - 3 March 2013 blog post:

All parts of society and as all parades have a message to point out. I could easily see the message in this parade which I am disgusted at, all segments of society to accept diversity of ways and gay and lesbian sexuality. This is evil and a major security risk to Sydney.. . .

THAT IS DANGEROUS, VERY VERY DANGEROUS AS A BOMBING COULD EASILY BE CARRIED OUT ON THIS PARADE WHICH WOULD HAPPEN WITHOUT NOTICE.

Then you have near naked men and woman march down the parade, showing their bums at all, acting sexual behaviours, little children involved in this march and right at the very end two men masturbating each others on a float with gay marriage, and women acting sexjual acts with each other as well.

This was the last thing I could task as the end of the parade started to hype up into a sex orgy in the main streets of Sydney so I had to get out and when it finished I just walked away from this and went to central station to catch a train bus back to Broadmedow

This is evil as right at the end you practicably had ther parade participants get involved with sex with each other over a gay marriage float and for the Military and Police with other government departments and heads (such as clover Moore) go get involved with such, it is totally unacceptable/

and worst of all

Our authorities are now part of this degenerating and unacceptable behaviours as depicted in this march, Where is Western society leading, God will not tolerate this wickedness for ever.

(According to Mr Burns, by using different fonts, the applicant invites the reader to click on the links. In this case the link opens up to a page headed "Destination NSW" promoting the Sydney Mardi Gras.)

(3) Third publication - 10 March 2013 blog post,:

To all whom think that I should be punished for vilification I do not do

Also i am making it my goal to rid Sydney of this Mardi Grad which is also a major danger of terrorist attack upon this city.

(4) Fourth publication - 14 March 2013 blog post,:

Jesus is NOT gay

The only thing is to stop parade in case of potential terrorism in 2014 because of the soft target and the controversial nature of the parade.

If a terrorist done a bombing on this or a suicide bombing we could not possibly stop them, nor could the police and they would be blown up in it I state better to stop this parade to keep the terrorist away. If I was able to creep in unnoticed so could anyone and so could a potential suicide bomber. this is a bad ting and must be stopped this year, and put into the annuls of Sydney's history.

(5) Fifth publication - 1 April 2013 blog post

I Declare Jihad

I declare Jihad against the all LGBT groups and the atheist as they are deluded deceiving the people.

i also agree with Fred Phelps over the GLBT groups which in themselves are very evil and wicked groups that God will destroy eventualy

(6) Sixth publication - 14 April 2013 blog post:

I do not hate gays and or lesbians as he accuses, I do not like the Sydnety Gay and Lesbian Mardi Gras as it is totally inappropriate for the streets of Sydney.

Open target for terrorist attack

Besides that it draws big crowds in an event in Australia which has got troops overseas fighting Islamic extremists and extremists else where and this leaves a huge danger to Sydney of an easy terrorist attack and terrorist suicide bombing.

This event is extremely controversial, extremely large crowds of people gather in very difficult to protect if the authorities can at all from a terrorist attack, and would give very wide publicity for the terrorist group who done the bombing

It should be stopped immediately without delay before something very nasty happens or it will come upon us by surprise, just like the London Bombings, (7 July 2005) Madrid train bombings (7th March 2004) and Most all which is now infamous 9/11 September 11 2001 in New York

(7) Seventh publication - 7 May 2013 blog post, with hyperlink to a YouTube clip of Westboro Group Church, with the following statements:

The best of Fred Phelps - I do not agree full but he is better that the LGBD and rainbow groups - You Tube

Fred Phelps You Tubes

I do not think that this is appropriate in all circumstances but Fred Phelps is a far better man than the leaders of the GLBT or rainbow groups which are very evil and they are a extremely nasty piece of garbage

Watch and Enjoy understanding I back this rather than the GLBT groups or the rainbow groups

What is the relevant act and is that act a "public act" of Mr Sunol's?

13 Mr Sunol agrees that he published the material set out above on an internet site controlled by him that is accessible to any member of the public without a password. Such publications are a form of 'communication to the public' and constitute 'a public act': Jones v Toben [2002] FCA 1150 per Branson J at [73] - [75].

14 Publication 7 contains a hyperlink to a YouTube video about the teachings of the Westboro Baptist Church. The video shows a person making extremely derogatory remarks about homosexual people and engaging in anti-homosexual campaigning. Providing the hyperlink to this video is a form of communication to the public. By posting the hyperlink on his website Mr Sunol was publishing the content of the video to internet users at large.

15 In summary, all seven publications are public acts of Mr Sunol.

Incitement of hatred, serious contempt or severe ridicule on the ground of homosexuality?

Introduction

16 Mr Sunol submits that none of his publications incite hatred, serious contempt or severe ridicule against a person or group of people on the ground of their homosexuality. In relation to his comments about the Mardi Gras he says "I was not vilifying but stating what I think of the event, not the gays, this has nothing to do with gays." We appreciate that this may have been Mr Sunol's intention, the words themselves are the public act, not Mr Sunol's subsequent interpretation of those words: Burns v Sunol (No 2) [2012] NSWADT 247 at [38] and [39].

17 In Collier v Sunol [2005] NSWADT 261, the Tribunal held that a public act will incite hated, serious contempt for or severe ridicule of a person or group if it contains "strong epithets, derogatory labels and serious allegations, put forward as reasons why other people should develop such feelings."

18 The publications on Mr Sunol's website were directed to internet users. Anyone who uses the internet was able to access his website and read the text. Internet users are the class of persons to whom the text is directed. The Tribunal made the same finding in its 2012 decision at [43]:

We are treating internet users at large as 'the class' to which the publications were 'directed'. It may well be that the people who log in to the websites where these publications occurred - being in the majority of instances the sites maintained by Mr Sunol - would be more responsive than 'ordinary' internet users to the statements attacking homosexual people. But we have no evidence on this question.

19 Similarly, in this case, there is no evidence as to the nature of the particular audience to whom the publications were directed. We do not know whether those who actually read the text or viewed Mr Sunol's YouTube clip were more or less responsive than ordinary internet users to his statements. It will be necessary to consider whether the public acts would reach the mind of an ordinary member of that audience as something that would encourage the requisite emotion.

Publications about the behaviour of participants in and organisers of the Mardi Gras (Publication 1, 3 and 6)

20 Publication 1 contains an allegation that child abuse, drug dealing and pornography are rampant at gay and lesbian public events, such as the Sydney Gay and Lesbian Mardi Gras and the Sleaze Ball. Mr Sunol also maintains that these events are 'run by ... drug dealers and pornography dealers." Mr Sunol calls for such events to be investigated, closed down and for the perpetrators to be "brought to justice."

21 In Publication 3 Mr Sunol writes that it is his goal to "get rid of" the Mardi Gras. In Publication 6 he says that the Mardi Gras is "totally inappropriate for the streets of Sydney."

22 Some of these comments are similar to those made by Mr Sunol on other occasions. In the Tribunal's 2012 decision at [56], comments about participants in the Mardi Gras were found not to constitute homosexual vilification because they were prefaced with the comment, 'I am not anti-gay.' In Collier v Sunol [2005] NSWADT 261 at [68] the Tribunal held that allegations levelled at "the Mardi Gras" in general were not on the ground of homosexuality because Mr Sunol had expressly stated that he was not "against the average gay" and that he was accusing the Mardi Gras leadership, not its participants.

23 But in the Tribunal's 2014 decision at [58] to [61], a similar publication was found to constitute homosexual vilification. We make the same finding in this case. Saying that child abuse and drug dealing is rampant in the Mardi Gras and the Sleazeball is a serious criminal allegation. As the Tribunal said in its 2014 decision at [58], there is a high degree of social stigma attached to those allegations. Mr Sunol calls for such people to be investigated and brought to justice. Accusing people of such serious crimes and urging that action be taken against them, has the capacity or effect of inciting an ordinary internet user to hatred and/or serious contempt for such people.

24 The comments in Publication 1 are directed to those participating in the Mardi Gras ("child abuse and drug dealing is rampant in ... (the) Gay and Lesbian public events") and those who run or bring about such events. We take judicial notice of the fact that the vast majority of such people are members of LGBT (lesbian, gay, bisexual and transgender) community. The incitement is 'on the ground' of the homosexuality of members of that group. Mr Sunol has a seemingly unshakeable belief that participants and organisers of the Mardi Gras and the Sleaze Ball have engaged in criminal activities including child abuse. Mr Sunol does not put forward any evidence for that belief other than what he has been told. In our view, at least one of the reasons for Mr Sunol's belief is that they are homosexuals. That is one of the 'real' genuine or true reasons for the incitement: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [25]; Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20.

25 The sections in bold font in Publication 1 are in breach of the homosexual vilification provisions of the Act. Mr Sunol's statements that he would like to "get rid of" the Mardi Gras and that he feels it is "totally inappropriate for the streets of Sydney" do not contain such strong language. These aspects of Publications 3 and 6 do not incite hatred, serious contempt or severe ridicule. Other parts of those publications are addressed below.

Publications about gay and lesbian sexuality (Publication 2)

26 In the second publication Mr Sunol expresses the view that the Mardi Gras has a 'message' which is that society should accept gay and lesbian sexuality. In his view, these things are 'evil'. He is disparaging of people appearing 'near naked' in the parade and 'acting out sexual behaviours'. He alleged that 'two men were masturbating each other' on a float in the parade. He describes the event as a 'sex orgy' and expresses the view that it is 'evil' and 'unacceptable'. He concludes by criticising the involvement of government and politicians in the event and asserts that 'God will not tolerate this wickedness for ever.'

27 It is not unlawful for Mr Sunol to express his disagreement, or indeed his disgust, with public displays of nakedness or sexually suggestive conduct among gay and lesbian participants in the Mardi Gras. That kind of sentiment does not reach the threshold of inciting hatred or serious contempt of such people on the ground of homosexuality.

28 Mr Sunol is commenting about particular behaviour that he finds objectionable. He describes those activities using highly deprecatory labels such as 'evil' and 'wickedness'. But Mr Sunol's comments are directed to the public display of certain behaviour rather than to homosexuals or homosexuality in general. While it is arguable that the people who engage in such activities are overwhelmingly gay or lesbian, we are not satisfied that the comments are 'on the ground of' their homosexuality.

29 Those parts of Publication 2 that refer to the sexually explicit conduct of gays and lesbians in the Mardi Gras as 'evil' and involving 'wickedness' are not in breach of s 49ZT(1).

Publications about the possibility of a terrorist attack at the Mardi Gras (Publications 2, 3, 4 and 6)

30 Publications 2 and 3 state that the Mardi Gras is at risk of a terrorist attack. Publication 4 explains that the risk arises because it is a 'soft target' and because of its controversial nature. Mr Sunol proposes that the Mardi Gras should be stopped for that reason.

31 Publication 6 states that the Mardi Gras is an open target for a terrorist attack because Australian troops are fighting Islamic extremists overseas. According to Mr Sunol, an attack at the Mardi Gras would provide wide publicity for the terrorist group responsible because large crowds of people gather at the event and it would be difficult for the police to protect them. He states that the Mardi Gras should be stopped before something "nasty" happens, like the terrorist attacks in London, Madrid and New York.

32 In these passages Mr Sunol puts forward his view that the risk of a terrorist attack is a reason for stopping the Mardi Gras. That view does not incite hatred, serious contempt or severe ridicule of a person or group on the ground of homosexuality. Despite his failure to call for an end to other large gatherings or parades, it cannot be implied that one of the real reasons he made this comment was the homosexuality of the participants.

Publications about LGBT groups (Publications 5 and 7)

33 Publication 5 states that LGBT groups are "very evil" and "wicked" and that God will destroy them. Publication 7 states that LGBT and "rainbow" groups are "very evil" and "an extremely nasty piece of garbage". In this publication, Mr Sunol also says that he "backs" the video of Fred Phelps' group, the Westboro Baptist Church, rather than LGBT groups and "rainbow" groups.

34 We take judicial notice of the fact that "rainbow" groups refers to groups that support the LGBT community and LGBT rights. These groups often use the rainbow flag as a symbol or identifier.

35 By using words such as "evil" and "wicked" and "garbage" to describe groups that support homosexual people and their rights, Mr Sunol's words have the capacity or effect of inciting the ordinary internet user to hatred or serious contempt towards such people. That incitement is manifestly on the ground of their homosexuality.

36 Publication 7 contains a hyperlink to a YouTube video prepared by members of the Westboro Baptist Church. The comments in the video include repeated incantations that, "God hates fags" and "All homosexuals should die". Mr Sunol says he does not agree fully with the message in this video but says he 'backs' this message, rather than the message of the LGBT groups. By 'backing' the message in the video over the LGBT groups, Mr Sunol expresses qualified support for the message in the video. Given the intensity of the hatred incited against homosexuals in the video, Mr Sunol's comments would have the capacity and/or effect of inciting, in the ordinary internet user, hatred or serious contempt against homosexuals on the ground of their homosexuality. He invites his audience to 'watch and enjoy' the video. The fact that Mr Sunol considers it enjoyable to watch a video calling for the death of all gays and lesbians satisfies us that his comments about the video are in breach of the Act.

37 In relation to the publication of the content of the video Mr Sunol relies on the defence in s 49ZT(2)(a) that the publication was a "fair report" of a public act. The onus of proving this defence rests with him.

38 The comments in the video linked to Publication 7 include "God hates fags" and "All homosexuals should die". These are clearly directed towards homosexual people. These are statements of the strongest kind which incite not only hatred and serious contempt but violence against homosexuals on the ground of their homosexuality.

39 Under s 49ZT(a) a public act will not be unlawful if it is a "fair report of a public act referred to in subsection (1)", that is, a public act which is homosexually vilifying. This exception is expressed broadly. In contrast, the racial hatred provisions of the Racial Discrimination Act 1975 (Cth) limit the "fair report" defence to "a fair and accurate report of any event or matter of public interest": s 18D(c). In defamation law, the exception is even more confined. Section 29 of the Defamation Act 2005 provides for the defence of a "fair report" of "proceedings of public concern" including parliamentary and court proceedings. To be "fair" the report must be a substantially accurate summary.

40 The defence in the Act has been discussed in only one case of which we are aware. In Trad v Jones & anor (No 3) [2009] NSWADT 318 at [195], the Tribunal said that a fair report "connotes an objective, balanced approach by a reporter who is seeking to present to the audience the facts of the particular story unembellished with the reporter's own opinions about the facts." The Tribunal's conclusion about the fair report exception was set aside by the Appeal Panel: Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19 because the public act being reported was not itself, racially vilifying. Consequently it did not come within s 20C(1). Having come to that view, the Appeal Panel did not need to consider the Tribunal's articulation of the test.

41 With respect, we do not agree that a report cannot be fair if the reporter embellishes the report with his or her own opinion. What must be 'fair' is the report of the public act. A reporter is free to add his or her own opinion as long as the opinion itself is not vilifying. The question when applying the fair report exception is whether a public act reporting homosexually vilifying conduct is 'fair'. If it is then the content of that report will not be an act of vilification by the reporter.

42 In this case, Mr Sunol put a hyperlink to the video on his website. He did not alter the video or describe it inaccurately. In that sense, he reported it fairly and he has a defence to the allegation that he was the publisher of any vilifying material in the video.

Conclusion

43 Mr Sunol has breached the homosexual vilification provisions of the Anti-Discrimination Act in Publication 1 (bold text), Publications 5 (evil and wicked groups statement) and Publication 7 (references to leaders of the LGBT groups being 'evil' and an 'extremely nasty piece of garbage'.)

Victimisation provisions

44 It is unlawful for a person to victimise (or punish) another person because he or she has complained of discrimination or done certain other things listed in s 50 of the Anti-Discrimination Act:

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Victimisation - legal principles

45 We adopt the following principles in relation to victimisation set out in the Tribunal's January 2014 decision at [80]-[86]:

80 To prove victimisation, Mr Burns must establish the following:

(a) he did one of the things referred to in sub-paras (a) to (d);

(b) Mr Sunol caused him to undergo or experience something;

(c) he suffered some consequential detriment; and

(d) that detriment occurred on one of the grounds set out in sub-paras (a) to (d): Carter v Brown [2010] NSWADT 109 at [131] - [133].

81 The concept of "detriment" was discussed in detail in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was, held that "... all that is required to constitute a 'detriment' in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter." The Tribunal went on to say that a broad interpretation of the word detriment is "consistent with the evident legislative intention to protect those who use the processes of the Act, or contemplate such use or assist in relevant ways in such use." The Tribunal adopted this construction of the word "detriment" in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano v Wilkinson [2004] FMCA 891.

82 In the Tribunal's 2012 decisions some complaints of victimisation were dismissed because the detriment inflicted by the publications was "trivial". The Tribunal explained that each of the non-victimising publications contained "no more than a single derogatory imputation about Mr Burns' character or conduct." The Tribunal went on to say that:

In each case, the underlying motivation - that Mr Sunol was angry about being made the respondent in legal proceedings instituted by Mr Burns - was immediately apparent to readers, many of whom would therefore be unlikely to pay much attention to the imputation. Accordingly, there was in our judgment no sufficient 'detriment' to support a claim of victimisation.

83 The finding that many readers would be unlikely to pay much attention to the imputation is relevant when assessing whether Mr Burns suffered any damage to his reputation. He makes no such claim in this case.

84 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40], the Tribunal held that the word "detriment" should be given its ordinary English meaning of "loss, damage or injury". The statement in Bogie that the complainant must be placed under a disadvantage as to a matter of substance as distinct from a trivial matter, is no more than an attempt to define detriment. If the disadvantage is trivial it will not constitute a detriment. Section 50 speaks of "any detriment in any circumstances". Regardless of the circumstances, any detriment is sufficient. Depending on the circumstances, that detriment may include the humiliation and stress which the comments engender and/or, as was suggested by the Tribunal in its 2012 decision, the damage to a person's reputation.

85 Whether a detriment has been suffered is to be determined objectively. In Sivananthan at [41], the Tribunal stated that "it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment." In summary, in our view a detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial.

86 In determining whether the detriment occurred "on the ground of" one of the matters set out in sub-paras (a) to (d), the question is whether "one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment": Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.

Complaints of victimisation

46 The allegedly victimising conduct is thirteen publications posted on Mr Sunol's blog and on his Facebook page during the period 10 March 2013 and 17 May 2013. There is no dispute that Mr Sunol wrote these comments. Mr Burns' case is that Mr Sunol subjected him to a detriment by making these publications and that the reason he did so was because he lodged complaints against him under the Anti-Discrimination Act: s 50(1)(a).

47 The relevant parts of the publications are set out below, in chronological order. We have not corrected any of Mr Sunol's misspellings or typographical errors.

(1) 10 March 2013 blog post:

To all whom think that I should be punished for vilification I do not do

I have my assets tied up in family trusts to keep them away from these thieves who take me to the courts and now I am under no control like I was before when I was driving a taxi which I can go back to any time I wish after I get doctors clearance, NOT CLEARANCE FROM THIS LIAR G''''' who has no say over me what so ever - as If I am going to take notice to this thief and court abuser anyway.

. . .the best thing is THAT DIRTY FILTHY THIEF WHO TOOK ME TO THE TRIBUNALS ON FALSE SET UP LIES CAN NOT TOUCH THIS OR ANY OF MY ASSETS AS ALL OF MY ASSETS ARE IN A FAMILY TRUST AND MY PERSONAL MONEY I JUST KEEP A MINIMUM so no thief like this person who took me can get to me. Any extra I get hold of I will put in the hands of other parties to keep this away from that thief and liar G''''' tho took put me unjustly through the legal system which he abuses all of the time.

So you go and jump G''''''' as you can not touch one little thing of mine as I do not have the cash on me to pay you YET and I will pay you when I get it.

But

with the tribunal win this is only STOLEN MONEY YOU STOLE FROM ME BY THE LIES YOU TOLD THE TRIBUNAL LAST YEAR

both you

Rod S

Tony B (Pirate) from zgeek

and

other goonie birds who are only a bunch trouble makers and of liars who keep their names away from me. I do not think you are acting alone, This is a conspiracy to bring me down and this will NOT work as I am aware of it.

I thank you for all you have done G''''''' as you have now given me the freedom to sit at the computer, all day and every day writing as I want to deliberately "piss you off"

My worries are not for any money as I owe nothing but the relevantly small amount that I was ordered to pay G""" and he did not pay me the money that he was fined on the 5th August 2011 for telling lies about me in the Waverly local court and I am doing a reciprocal deal = I am not concerned and there is not a damn thing you can do G""""

(2) 10 March 2013 post on Facebook page:

I wish to thank those who have been doing unjust attacks against me

Gary Burns, John Sunol, ADT cases

(3) 16 March 2013 comments on blog post, titled "Pope Francis is part of an illuminati conspiracy":

Hanibal, this is NOT my personal gay war, it is a bunch of trouble makers directly from Satan in the form of Pirate, Gary and Rod all telling lies to steal money off my by fraud in the courts and to put me down, I take this as an attack from the devil, it is not my personal gay war and and I also tell you, shut up or I will force you to shut up buster

I did nothing to Gary, He made up lies and got the help from others to put this lies to the courts and I was order to pay him money. Gary is a thief and not more than a common thief and he steals in making up lies and putting it to the courts in fraud. He is a con man and a mongrel who I will not give in at attacking him or his evil people.

Hanniball, go to Hell buster, it is all on and not off and I declare all out war or as the Muslimns saw Jihad with you fools and I jsut will not stop or give in and I will not take responsibility for this, it is all your fault and not mine you bastards, as that is what you lot, gay rod, Pirate and all of you bastards.

I do not do hate speech and yiou AVO will get no where, ask Gary as he tried this and failed and had to pay me $4,400 for telling lies to the court, 5/9/2011 Waverly local court in Sydney, He is a mongrel as this man refused to pay up

Can I ask this to you lot, who thinks it is going to be hard for me to find different work than taxi or who will back a thief like Gary and write to all my prospective employers before job interview and tell them lies about me I know

Hanabal . . . I done nothing to you and that Gary Burns is only a common thief who tells lies to the courts and tribunals to sue you for money He is an evil man and I will never give into a thug like that. I would rather go to prison than give into a thief like Gary.

Hannibal: Go to Hell you thief and internet thug. You are only one of the bastards who have messed up this site. I have to find work and I do not need you internet thugs telling any more lies or that Gary writing to all my prospective employers and telling lies to stop me.

I did nothing to Gary, He made up lies and got the help from others to put this lies to the courts and I was ordered to pay him money. Gary is a thief and not more than a common thief and he steals...

(4) 2 April 2013 blog post:

Gary is just like Kim Jon Un - very unpredictable with me

Gary who is attacking me is like Kim Jon Un of North Korea very unpredictable

I will only say this, the man who is taking me on is very unstable and reminds me of the massive propaganda that Kim Jon Un is doing that present moment.

I back the United States as an unstable country like North Korea with nuclear weapons represents a great danger everywhere, just as that Gary with the law is also a big danger

I take Kim Jon Un very seriously as he is very dangerous man, just as I take that Gary I am fighting in the courts very unstable and a very dangerous man

(5) 5 April 2013 blog post:

I am not paying Gary one red cent until ia m ready, he is a plain straighrt out theif who made up lies about me in the Tribunals for his own reasons of scamming money. This man is a liar and a their and I just will not change from this truth.

I have coming up court cases against Gary and eh will surely loose. I am not going to pay what I was told to. Gary is only a thief.

(6) 7 April 2013 blog post, titled "John Sunol vs Gar Burns is back on again":

I will leave it a this but I will fight this Gary to the day I die as he is an unethical mongrel who abuses the law all of the time wit others and set you up.

I will leave it at this, Gary and his unethical and criminal mates have hijacked a web page I had and are using it for their own skulduggery in attacking me with lies. They also use it to give false evidence to the courts to unethically obtain money for themselves.

Worst of all he also gets other to back him up falsely attack you with lies and commit skulduggery in the Tribunals and court systems Namely Rod and Pirate in my case but he will use other as well.

This case about me and Gary is back on again as Gary is only a thief. He wants to et more money from me. I owe him right now but I will give him 'bugger all" and not apologize s Gary is only out to accuse people of false accusation in the Tribunals to obtain money by Fraud, that is all I will say about this man. He set you up, tellies lies, then puts false evidence and commits public mischief and deceit. He is not good and I will never pay or apologize to this kind of illegal activity.

(7) 9 April 2013 blog post:

I am dealing with the thugs and criminals that run the Sydney Gay and Lesbian Mardi Gras and an unethical homosexual activist who prides himself in abusing the court systems.

I have had a couple of court cases against a real trouble maker, Gary Burns who tells lies and steals money from people from abusing the court systems, he is a homosexual activists in Australia who has taken famous media personnel and political to the Tribunals (courts) on vilification occupations and steals money from you in this fashion. Namely one was a very famous radio personnel on 2GB in Sydney called John Laws (2004) He calls this a public interest but he in reality is stealing money and gathering notoriety in doing this.

He has attacked me over a number of years on false accusations and look at my site now, this has been hijacked and stolen from me. I paid a lot of money to get this in operation and worked on it successful with another person for over 5 years. I was getting quite successful in this and others who do not like me do not like the success I make either.

This man has had 19 false complaints he stole money off me from and now wants more.

(8) 11 April 2013 blog post:

Gary Burns is using me as a show pony

Gary Burns

Is using me as a show pony and wants to steal money off me by telling "porkies" or big lies in the courts and tribunals to set me up on false accusations.

I am utterly sick of this man and how he is abusing the law with me all of the time and I want to take him and have it out with him in front of the media and the whole of Australia over the big difference in the context of our blogs.

He write purely on homosexuality. I write on different issues but focus on the coming of a one world government and heavily on the conflicts world wide

We are so different it is not funny. It is the difference apart from East to West has and it is not getting better or wider.

Just read his blog and his tweitter accounts, then go to his Facebook accounts and see what this man has written on myself in all of his accounts

They are full of lies, slander and false information or disinformation.

(9) 12 April 2013 blog post, titled "Gary Burns who is taking me to court - removal of religious exemptions to the anti-discrimination bill on the table":

this Gary Burns who is taking me to court is both a political animal as well as a thief. He wants me to pay him money for the leis he tells to the court over me and set me up fraudulently in a false case and false accusations

A couple of others from the same groups that he is with back him with accusing me on false accusation with what they do NOT know in reality. These people do not know me at lal are throwing accusations with no basis behind them at all.

I state: do your research before you accuse a person fo something or you are only out to commit fraud.

At the moment religious institution do not have to hire based on equality of sexuality due to their belief systems but this Gary burns who is taking me to court and stealing off me is with the Greens and wants all exemptions moved from legislation. He is also doing what Henry Collier did and using me as a political precedent in the courts to set this action of anti discrimination - vilification in motion. I even failed in the appeal against this due to the evidence that was needed to have a decision made against you. Others set me up and told the courts and Mr Collier lies.

But this man is worst than Henry Collier as he wants to force me to pay him money for the lies he tells the courts.

He is a political animal and a thief - this is what I am fighting.

Please not Gary has also taken other prominent people to court on similar reasons to both obtain money and notoriety.

(10) 14 April 2013 blog post:

Gary Burns

This man is a well know fraud in Australia and he steals money off people by making up lies and putting false cases against people in the Administrative decisions tribunals.

He done that to me and expect me to pay him $11,000 for the lies he manipulated and put to the tribunal with the help of other trouble makers (zgeek Pirate and Rod Cub both from zgeek) and liars in conjunction with the LGBT groups in Australia.

I will not accept this, never will and never have as most of this case he won against me was concocted information which came out of no where and backed up by others.

(11) 14 April 2013 post on Facebook page:

I am totally against this and the Greens Party. John Christopher Sunol I was called homophobic as I disagree with same sex Marriage, people are using this to set others up and steal money throught the ADT this is very wrong and I dedicate emy life to under this rubbish. John C.Sunol. just tlook at the collier vs sunol cases 2005 in the ADT and the supreme court 2012 in NSW and then look at the Further ADT cases of Burns vs Sunol 2012 and coming up 2013.

Your policy on Homophobia is very wrong and scum bags like Gary Burns uses this to steal money from people like he is going to against me this year in coming up ADT further cases in 2013 which are yet to have a date set.

Now lets look at the last entry in the Wikipedia article on Gary Burns. H set me up and I lost as he produced false evidence to a tribunal which is only a civil tribunal meant really for industrial disputes. It this had gone to a proper court he would not have had the evidence to have me found liable or guilty. This man in conjunction with Pirate, Rod Cub on zgeek and others manufacture false evidence and lies to get me put before a tribal, to have a decision made against and worst of all Gary wants to steal money form me in this way by the misuse of the legal system. He is a scum bag who will step to any lowe level to get his way.

Any further information contact Gary Burns and he will spill a whole host of made up lies and propaganda about me.

(a) I read your policy statements on homophobia they are very wrong, vry dangerous and fruit cakes and psychos like Gary Burns can use them to steal money off people like myself.

(12) 17 May 2013 blog post:

These groups even hacked into my web site from an IP address of a person taking me court and put pornographic videos, pictures and information on it which is unfairly attacking me.

(13) 18 May 2013 blog post:

I also found out that Gary "" "" who is unjustly taking me to court is the person who's computer that the hackers used in getting into my blog with the pornography, this man is NOT good as I found out from professionals through IP addresses being traced.

If that picture of a man showing his penis is not removed without delay Gary """" this will be used against you in court as you are the one setting me up or others through he use of YOUR COMPUTER. I can get the person who got the IP address as it was a computer professional who done this for me so you can not get away with your skulduggery or thieving liar.

So go and whistle Dixie to the Pixies as you are not going to get the money you want $100,000 even if you win as I will put all my assets and money into others names to keep this form you, I do not have this money anyway and you can not touch my home as it is in trust. YOU THIEF.

Assessment of victimisation complaints

48 Eleven of the thirteen publications constitute a detriment to Mr Burns - Publications 1, 3-11 and 13. They contain abusive and derogatory language directed to Mr Burns. In Publications 1, 3, 5, 7, 8, 9, 10, 11 and 13, Mr Sunol calls Mr Burns a "thief" and accuses him of stealing money from him. In Publications 1 and 3-11, Mr Sunol accuses Mr Burns of abusing the court system, fraudulently taking him to the Tribunal and making up lies about him in the Tribunal. In Publication 3, Mr Sunol calls Mr Burns "a con man and a mongrel". In Publication 4, Mr Sunol compares him to the North Korean dictator Kim Jong-un, accusing him of being "very unstable" and "a very dangerous man". In Publication 5, Mr Sunol calls Mr Burns a "liar". In Publication 6, Mr Sunol calls him "an unethical mongrel who abuses the law all of the time".

49 These eleven publications all contain the kind of language that would cause a reasonable person to believe that Mr Burns would feel insulted or offended. They would give rise to an "injury" in the form or offence or insult, and therefore cause Mr Burns to suffer a detriment.

50 The two publications that do not give rise to a detriment are Publications 2 and 12. In Publication 2, Mr Sunol mentions "those who have been doing unjust attacks" against him. He does not mention Mr Burns in particular. In Publication 12, Mr Sunol accuses LGBT groups of hacking into his website and of "unfairly attacking" him. He does not refer expressly to Mr Burns or use any language that would cause Mr Burns to personally suffer a loss, damage or injury.

51 The next question is whether the detriment to which Mr Burns has been subjected was "on the ground of" one of the matters listed in s 50(1). In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37], the Tribunal decided that one of those matters must be at least one of the "real", "genuine" or "true" reasons for subjecting the person to a detriment.

52 In 2012, Mr Burns brought proceedings in this Tribunal against Mr Sunol for homosexual vilification and victimization. That is conduct within s 50(1)(a). On 28 November 2012 the Tribunal handed down its decision - Burns v Sunol [2012] NSWADT 246. In that decision, the Tribunal found that Mr Sunol had made statements that amounted to homosexual vilification and victimization and ordered Mr Sunol to pay compensation to Mr Burns and issue a public apology. The eleven publications that constitute a detriment to Mr Burns were published between 13 March 2013 and 18 May 2013.

53 In all eleven publications, Mr Sunol refers expressly to the proceedings brought by Mr Burns. For example, in Publication 1, Mr Sunol calls Mr Burns a "dirty filthy thief who took me to the tribunals on false set up lies". In Publication 6, he says that Mr Burns "is only out to accuse people of false accusation in the Tribunals to obtain money by Fraud". In Publication 9, he says that Mr Burns "set me up fraudulently in a false case".

54 We are satisfied on the basis of the references to the proceedings in all eleven publications that the 2012 proceedings are at least one of the "real", "genuine" or "true" reasons for Mr Sunol's abusive and derogatory language directed to Mr Burns.

55 Mr Burns' complaint of victimisation is substantiated.

Remedies

Background

56 Section 108(1) of the Act provides that:

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

57 We have found three separate publications on Mr Sunol's blog site to constitute homosexual vilification. We have also found eleven instances of victimisation. Having found parts of the complaints substantiated, we may make certain orders in relation to those complaints: s 108(2). Those orders include monetary orders by way of compensation for any loss or damage suffered by reason of Mr Sunol's conduct, an order enjoining Mr Sunol from continuing or repeating any unlawful conduct and an order to publish an apology or retraction. In addition, if the Tribunal orders an apology or enjoins a respondent from continuing or repeating certain conduct it may also order that, in default of compliance with the order, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order: s 108(7).

58 Mr Burns sought an order for damages, an order that Mr Sunol apologise and an order enjoining Mr Sunol from continuing or repeating any unlawful conduct.

59 In the Tribunal's 2012 decision it found some aspects of Mr Burns' complaints of homosexual vilification and victimisation substantiated and ordered Mr Sunol to:

(1) remove certain material from every website controlled by him;

(2) refrain from publishing that material again;

(3) post a specified apology on every website controlled by him with 14 days;

(4) pay to Mr Burns $3,000 as compensation for the harm caused to him by the publications which were found to constitute homosexual vilification;

(5) pay to Mr Burns $3,500 as compensation for the harm caused to him by the publications which constitute victimisation; and

(6) write a letter of apology in specified terms to Mr Burns.

60 The Tribunal determined several other complaints of homosexual vilification and victimisation involving the same parties in Burns v Sunol (No 2) [2012] NSWADT 247. The orders in that matter were in similar terms to those summarised above except that Mr Sunol was ordered to pay Mr Burns $2,000 as compensation for the harm caused to him by the publications which constituted homosexual vilification and $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation. In total, Mr Sunol was ordered to pay Mr Burns $11,000. According to Mr Burns, Mr Sunol has not complied with any of these orders.

61 In the Tribunal's January 2014 decision Mr Sunol was ordered to pay damages of $1,500 for the homosexual vilification and $3,000 for the victimisation. He was ordered to remove certain homosexually vilifying and victimising material from websites controlled by him and to refrain from publishing any further material of that kind. The Tribunal ordered Mr Sunol to apologise both publicly and privately. Mr Sunol did not comply with two of those orders and was ordered to pay a further $5,000 in damages: Burns v Sunol (No 2) [2014] NSWCATAD 44. In total Mr Sunol has been ordered to pay $20,500.

Evidence relating to remedies

62 On the basis of evidence provided by Mr Burns, we are satisfied that he is suffering from complex Post Traumatic Stress Disorder. He was the victim of a number of violent gay hate crimes during the period 1989-1993. He suffered severe physical injuries and Post Traumatic Stress Disorder. Mr Sunol's repeated verbal attacks have caused him to be re-traumatised.

Remedies for vilification complaints

63 It is appropriate to order Mr Sunol to remove from his website all the material which we have found to constitute homosexual vilification and any material to the same or similar effect. Mr Sunol should also refrain from publishing such material on any website, controlled by him, in the future.

64 It is also appropriate for Mr Sunol to publish an apology for the vilifying conduct on his website in the terms set out in the orders. If he does not remove all the offending material and any material to the same or similar effect, refrain from publishing similar material and publish the apology within 14 days of the date of these reasons, he is to pay Mr Burns damages of $2,500 by way of compensation for failure to comply with any of those orders. The Tribunal will re-list this matter in 3 weeks to hear evidence as to whether Mr Sunol has complied with these orders.

65 In addition, Mr Sunol should pay Mr Burns damages for the pain and suffering he has endured as a result of the vilifying statements. The principles in relation to damages for vilification were set out in the Tribunal's 2012 decision at [112] to [123]. In this case, all the vilifying publications were on Mr Sunol's website. Prior to the Tribunal's 2012 decision, there had been no awards of damages for vilification published on the internet. We agree with the conclusion in the Tribunal's 2012 decision that damages for publications on Mr Sunol's website would be much less than for a publication by a high profile media personality. As in the 2012 decision, Mr Sunol's publications were relatively inconspicuous.

66 We accept Mr Burns' evidence about his special sensitivity to all the material. But none of the material that we found to constitute homosexual vilification relates specifically to him. It relates to Mardi Gras and Sleaze Ball organisers and participants or homosexuals in general. None of this material was "thrust upon" him. Mr Burns chose to read it, knowing Mr Sunol's reputation for publishing vilifying material.

67 In the Tribunal's 2012 decision at [126] and [127] the Tribunal made the point that Mr Burns has a duty to take reasonable steps to mitigate the damage or loss caused by the conduct. The duty to mitigate may be applicable in assessing damages under the Act, but there is no hard and fast rule. While the Tribunal in that case did not consider it appropriate to deny Mr Burns' damages on the basis that he had failed to mitigate his loss, it did consider it relevant that Mr Burns could choose whether or not to visit Mr Sunol's website and run the known risk of encountering hurtful material.

68 We accept Mr Burns' evidence about his special sensitivity to the vilification of homosexuals including himself. But these publications were all on Mr Sunol's website. They were not sent directly to Mr Burns or said in his presence. Mr Burns either accessed the website himself or, in some cases, was provided with the information by a friend. He says that one reason he did so was to check whether or not Mr Sunol had complied with the Tribunal's 2012 orders.

69 Mr Burns was impliedly on notice following the Tribunal's 2012 decision that his damages could be affected if he continued to choose to access Mr Sunol's website himself or read the content forwarded by someone else. While he chose to rely on others to forward him information from that website, he nevertheless read it. We appreciate that Mr Burns wanted to see whether Mr Sunol had complied with the Tribunal's orders but he could have delegated that task to a friend and advised him or her not to disclose the content of any further breaches. Because he chose not to take this course, Mr Burns' damages should be even less than the $3,000 awarded by the Tribunal in the 2012 proceedings and the $1,500 ordered in the Tribunal's 2014 proceedings. We assess Mr Burns' damages at $1,000.

Remedies for victimisation

70 The victimising conduct was insulting and defamatory words on Mr Sunol's website and on his Facebook page. There were eleven separate instances of victimisation and the language was highly offensive and derogatory. We assess his damages overall for victimisation to be $2,000. The low level of damages we have awarded is because Mr Burns could have chosen not to access Mr Sunol's website to read any of this material.

71 We also consider it appropriate for Mr Sunol to apologise personally to Mr Burns for the victimising conduct in the terms set out below, to remove the offending material from his website and to refrain from publishing similar material in future. Again, in default of compliance with any of those orders Mr Sunol should pay Mr Burns $2,500.

Orders

1. The following publications constitute homosexual vilification: Publication 1 (bold font), Publication 5, Publication 7 (excluding the publication of the YouTube video).

2. The following complaints of victimisation are substantiated: Publication 1 and Publications 3-11.

3. Within 14 days of the date of this decision, Mr Sunol is to remove the unlawful material identified in Orders 1 and 2 from every website controlled by him including Facebook and all material to the same or similar effect.

4. Mr Sunol is to refrain from publishing the material described in Orders 1 and 2 or material to the same or similar effect, on any website, controlled by him.

5. Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.

On various dates between 7 November 2012 and 7 May 2013, I published statements on a website controlled by me: www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people.

On 14 May 2014 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

6. In default of compliance with Orders 3, 4 or 5, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

7. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,000 for the homosexual vilification.

8. Within 28 days Mr Sunol is to pay Mr Burns $2,000 for the victimisation.

9. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows:

Mr Gary Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The NSW Civil and Administrative Tribunal, in a decision dated 14 May 2014 entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

John Sunol

10. In default of compliance with Orders 7, 8 or 9 within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

11. This matter is to be re-listed on 9 July 2014 at 2pm to determine whether Mr Sunol has complied with these Orders.

**********

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

Decision last updated: 14 May 2014