Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Burns v Sunol [2014] NSWCATAD 62
• Hearing dates: 13 November 2013
• Decision date: 14 May 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: N Hennessy LCM, Deputy President; A Lowe, General Member; M Nasir, General Member

Decision

1. The following publications constitute homosexual vilification:

(a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol:

"Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it."

(b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. "

(c )the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and

(d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..."

(2) The following complaints of victimisation are substantiated:

The passages in bold set out at 36 above.

The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced as [37].

(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 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 orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.

On 11 August 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 $5,000 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 14May 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 10.00 am to determine whether Mr Sunol has complied with these Orders.

• Catchwords: ANTI-DISCRIMINATION - racial vilification and victimisation - remedies
• Legislation Cited: Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013
• Cases Cited: Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267; 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; 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
• Category: Principal judgment
• Parties: Garry Burns (Applicant); John Sunol (Respondent)
• Representation: G Burns (Applicant in person); J Sunol (Respondent in person)
• File Number(s): 131095

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). 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 website and in letters Mr Sunol wrote to Mr Burns.

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 to 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 13 November 2013. Two other complaints about similar publications were heard on 5 July 2013 and 4 October 2013: Burns v Sunol [2014] NSWCATAD 2 and Burns v Sunol [2014]NSWCATAD62. We will refer to the decision in relation to the 5 July 2013 hearing 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 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. Mr Sunol did not rely on any of the exceptions in s 49ZT(2).

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 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 claims that on 11 August 2013, Mr Sunol has posted text on his blog in contravention of s 49ZT(1) of the Act. There is no dispute that Mr Sunol typed the words on the blog. None of Mr Sunol's misspellings or typographical errors has been corrected.

Content of publication

Sunday, 11 August 2013

One of these videos is going to be used against me in a court of law on October 4, 2013.

Watch this and know that I do not think this can be done today but it was back in History but this is what happened in History. This is taken from Fred Phelps site God hates fags on the Westerbury Baptist church and this is what Gary Burns is going to use against me on October 4, 2013.

I do not think this can or should be done today as we are living in the times of grace and not the law.

But this is going to be put forwards that I want to do in a court hearing on October 4, 2013 and I challenge Gary over this 100%.

(Hyper link to you Tube clip entitled "Anti-Christ in Chief" with a graphic of a man sodomising another man on the cover of the video)

Thank God for Russia's fag law (video News)

Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it.

I agree with Fred over this, let's thank God that the Russian people have got this right

more

I agree with Fred over this, let's pray for salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and rainbow people who are in very evil groups driving by the devil to create troubles.

(Link to YouTube clip entitled DEATH PENALTY 4 FAGS)

Death Penalty for Fags (sign movie)

All nations should follow God in requiring the death penalty for sodomy.

I do not agree that this is for today, it was done in Biblical history but today we are living in the times of grace that through Jesus Christs death we are taken from the law and put under Grace, this might have been relevant in Biblical times but not to go on a murderous rampage as it can easily be taken out of context. It was used against me that I want to go on this in a court case coming up October 4, 2013 but that is not truth.

This man taking me is a trouble maker, liar and abuse of the law all of the time, habitually tells lies to courts to obtain money.

This is the video that I am being accused of supporting to go on a murderous rampage and kill gays, those taking me to court and use this video to accuse me of serious vilification.

This is far from the truth: whilst I agree with this in history I do not agree that to kill gays today is relevant at all. I would be no better than a raging lunatic if I did that and it would be right for the authorities to lock me up for murder or attempted murder

This is what is coming up on October 4th and I am willing to speak to any media that wished to speak to me over this.

I am willing to speak to any media that wants to contact me over this case coming up on October 4 as I am going to fight this fully. The man who is taking is a continual and habitual court abuser.

(Hyperlink to you Tube clip entitled "God H8S FAG MARRIAGE")

God's love (audio)

Parody of "Same Love." Too late to pray, now that you've let fags marry. Have you read "Remember Lot's Wife" lately? - this I agree with as God not only hates gay marriage, gay marriage is an abomination to him and will end up in his wrath coming upon all who marry such a way.

You are deceived and deluded by Satan when you believe anything else.

(Hyperlink to you Tube clip entitled Vine of Sodom and grapes of gall.)

I agree but No comment.

Deuteronomy 32:32 for their vine is of the vine of Sodom, and os the fields of Gomorrah: their grapes are grapes of gall, their clusters are bitter.

morehink that this is for today but in Biblical history this was done

John Sunol

12 Mr Burns is not relying on the content of the video clips which are linked to Mr Sunol's blog as constituting homosexual vilification. He did not tender those videos in evidence. He is relying only on the depiction of the titles of the videos, the graphic of a man sodomising another man on the cover of the "Antichrist in Chief" video and Mr Sunol's commentary. In particular, Mr Burns highlights the following parts of the publication:

(1) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol:

"Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it."

(2) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. "

(3) the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and

(4) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..."

13 We will refer to these publications as Publications 1-4.

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

14 There is no dispute that Mr Sunol wrote the text on the website and inserted a hyperlink to the four videos. The website is accessible to members of the public without the need for a password. Publications 1-5 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].

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

Introduction

15 In determining whether any of the material posted on 11 August 2013 constitutes unlawful homosexual vilification under section 49ZT, we must consider each publication in isolation. But we must also consider the context of each publication. The material about which Mr Burns complains was in a single post on 11 August 2011. The main theme is that Mr Sunol objects to Mr Burns complaining about a publication on his blog on 7 May 2013 in which he inserted a hyperlink to what he described as the "Fred Phelps You Tubes." This publication was the subject of proceedings heard on 4 October 2013 (Publication 7):Burns v Sunol NSWCATAD61. Throughout the 11 August 2013 blog Mr Sunol suggests that Mr Burns' case is that he agrees with the content of the Fred Phelps' video, "Death Penalty 4 Fags" when he does not totally agree with it and has only inserted a hyperlink to it in the context of his discussion about homosexuality.

16 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."

17 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:

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.

18 Similarly, in this case, there is no evidence as to the nature of the particular audience to whom the publications were directed. We simply do not know whether those who actually read the text and saw the hyperlinks to the video clips 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.

Publication 1

19 Other than Mr Sunol's reference to "Obama" as the Antichrist, his commentary does not explain the content of the video clip "Anti-Christ in Chief". The text suggests that President Obama is "the Antichrist" because he opposes Russia's law that bars public discussion of gay rights and relationships 'anywhere near children'. Together with the graphic of the video cover showing a man sodomising another man, the message is that a person such as President Obama who condones homosexuality is the "AntiChrist", that is, a person who is against Christ, or against Christianity.

20 Calling someone who condones homosexuality the "Anti-Christ" is an extremely derogatory label. The label suggests that those who condone or support homosexuality should be hated or regarded with serious contempt. This publication would reach the mind of an ordinary internet user as something that would encourage hatred and/or serious contempt 'on the ground of' the homosexuality of the people concerned.

Publication 2

21 We take judicial notice of the fact that "rainbow" groups refers to groups that support the LGBT (lesbian, gay, bi-sexual and transgender) community and LGBT rights. These groups often use the rainbow flag as a symbol or identifier.

22 Mr Sunol agrees with and stands by Publication 2. The message in this publication is that laws prohibiting people from discussing gay rights and relationships near children are correct and that those who condone or support gay rights and relationships are "evil" and "driven by the devil to create trouble".

23 The terms "evil" and "driven by the devil" are strong epithets used to describe homosexuals and those who support the rights of homosexuals. Mr Sunol's words have the capacity or effect of inciting the ordinary internet user to hatred or serious contempt towards such people. The incitement is manifestly on the ground of the homosexuality of the people concerned.

Publication 3

24 Mr Sunol said that he does not condone violence against gays and will not accept that putting a hyperlink to the Fred Phelps' video, "Death Penalty 4 Fags", constitutes vilification. Mr Sunol said he put the hyperlink to Fred Phelps' website because he is talking about Fred Phelps and the hyperlink is a reference point for his comments. According to Mr Sunol, Mr Burns is 'twisting the facts and abusing' him.

25 Mr Sunol also denies that he had watched the video entitled "Death Penalty 4 Fags" when he inserted the hyperlink to it. In a letter to the Anti-Discrimination Board dated 21 October 2013, two months after he inserted the hyperlink, Mr Sunol again denied watching the video:

I did not look at the Westbro Baptist church homepage, only linked it to give reference to what I was talking about on my blog.

26 These denials are not consistent with an admission that Mr Sunol made on his blog page on 11 October 2013 that:

I will continue online now every day that I am not working to get back on board with my followers and speak on issues close to my heart.

I watched the Fred Phelps tape. In contrary to what Garry is putting to me in the Tribunals in NSW, Fred Phelps is NOT STATING in his youtube on his site Death Penalty for Fags that we should go an kill fags.

27 The issue is not whether Mr Sunol had viewed the content of the "Death Penalty 4 Fags" video when he inserted the hyperlink, but whether the depiction of the video title and Mr Sunol's commentary would reach the minds of ordinary internet users as something that would incite hatred, serious contempt or severe ridicule of homosexuals on the ground of their homosexuality.

28 Mr Sunol says that he wrote the words, "All nations should follow God in requiring the death penalty for sodomy" but that he does not agree with that statement. He goes on to say, "I do not agree that this is for today. It was done in biblical history but today we are living in the times of Grace ..." The context must be taken into account when determining whether the publication breaches s 49ZT(1). Mr Sunol has conveyed contradictory messages. The question arises as to why Mr Sunol would write, "All nations should follow God in requiring the death penalty for sodomy" when he immediately goes on to disagree with that unambiguous opinion. Later he says, "I agree with this in history ..." In our view, Mr Sunol is attempting to express his views in a way that does not contravene the homosexual vilification provisions. He makes an extremely provocative statement and then follows it with a qualification that it is not appropriate for today, but that he agrees with it 'in history'.

29 Mr Sunol's attempts to qualify his patently vilifying statement do not undo the effect of that statement. The publication read in context has the capacity or effect of inciting an ordinary member of the public to hatred or severe contempt of homosexuals on the ground of their homosexuality. It is no more or less than a call for gays to be put to death. Mr Sunol's attempt to qualify his bald assertion that, "All nations should follow God in requiring the death penalty for sodomy" does not succeed in removing or softening the impact of that assertion, especially given his later comment that he agrees with this 'in history'.

Publication 4

30 Publication 4 is the image of a video clip entitled "GOD H8S FAG MARRIAGE" with the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..." We take judicial notice of the fact that 'H8S' signifies the word "hates". The words 'fag' and 'faggot' are slang words for homosexuals. They are usually used in a derogatory sense unless in conversations between homosexual people: (cf the discussion in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [30 - 31]). In this publication, the word 'fag' is used in a derogatory sense.

31 It is not unlawful for Mr Sunol to express his disagreement, or indeed his disgust, with marriage between people of the same sex. That kind of sentiment does not reach the threshold of inciting hatred or serious contempt of such people on the ground of homosexuality. But when that opinion is expressed using derogatory language such as 'fag', 'hates', 'abomination' and 'wrath' the opinion has the capacity or effect of inciting the ordinary internet user to hatred and/or serious contempt against homosexuals on the ground of their homosexuality.

32 Each of the four publications is in breach of s 49ZT(1).

Victimisation provisions

33 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

34 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

35 The allegedly victimising conduct is publications of text on Mr Sunol's blog on 19 August 2013 and five letters Mr Sunol wrote to Mr Burns during the period 29 July to 16 September 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.

36 The relevant parts of the publications are set out below, in chronological order. We have re-produced the publications verbatim and put the allegedly offending matters in bold font.

Gary Burns is a theif

http://en.wikipedia.or/wik/Gary_Burns_(activist)

This man has taken me to court on number of occasions set up on false accusations and lies,

this man is full of fraud and he tells big lies about me, as he done to the ADT in these cases.

This man also is very political and this is another piece that he writes on.

To me Tony Abbott has no need to listen to this clown as he does not need to apologise to any gay whatsoever, he like me has done nothing wrong

Gary is full of skulduggery and political lobbying so all need to have an all Gary altogether

this is only a political attack upon Tony Abbott as like me he is degusted with gay marriage

I saw an article in the Newcastle Herald today has made me feel sick of two men being married in New Zealand

he did not even pay the $4000 he owed to my solicitor when he lost an AVO case in wave at 10 on 5 August 2011. He told straight out lies that I am going to harm him and I am a very dangerous man.

Gary told straightout lies and made up a load of bull shipped stories that I am going to hurt him, he was very afraid of me and put me to the expense of bringing a solicitor to defend myself. He knew this was a load of crap and when he lost this AVO and did not get it, he was told to pay my solicitor $4000 but he did not even do that, he disobeyed court orders openly knowingly and contemptuously - then when he won $11,000 off me by fraud in the ADT in 2012 he demanded the money straight away when I did not have it. He was even going to send a debt collectors around.

I tell this "ass hole" and Internet plug and a liar, go to hell as I am not going to pay you buster even if you win these last cases I will fight you and your kind write very end as you are the troublemaker, you are the liar and you are the abuse of courts. You are very wrong and a very evil man.

I am a fighter and do not give into thugs like yourself I have never given into thugs like you or curtailed to show restraint in any sense. Also you do not preter me buster, I do not get frightened, I just fight you back knowing that you are a very evil man who tells lies to get what you want and I am right and the victim in this case as with all my cases against you Burns.

You tell lies to the court, when caught out you will not pay but you expect me to pay you straight away when you're lies win in a civil tribunal

will then go to hell buster as this is not going to happen I am not going to pay you one red cent, I will fight you to the very end. Take me to the Supreme Court, have to be prisoned, I do not care but when I am right and thugs like you is attacking me I do not give in or sway one little iota

you are just as bad as those criminals that run that Mardi Gras held in March each year in Sydney

I will never pay you one red cent and you cannot and will not get this from me.

I do not vilified, I do not harass anyone and I do not victimise like you accuse me of.

That is all "bullshit" and "lies" made up out of your own mind to get money from me by the abuse of the courts system and fraudulent activity by yourself.

You are a very evil man as I have never touched you and never will. All I do is to defend myself and others from an Internet thug and court abuser like yourself and the others working with you from the GL S BT and/or rainbow groups.

A heal of bull crap, I have never hurt anyone or would: this man is a plain straight out liar and a con artist he wants to steal off you by telling lies and city you up on false accusations.

I have more cases coming up on 4 October in the ADT in Sydney so stay tuned and watch but Gary. Let me tell you this buster

I am not going to pay you even if you win as you, you mongrel with your skulduggery has told lies and stolen off me. I am not going to apologise to you or the gay community as I hurt know one will never hurt them or have I ever vilified.

I tell the truth and you tell lies which are made up by yourself in complete vindication.

Also when ever I answer you, you mongrel you state more lies that I am harassing you and victimising you.

Just to let you know this buster, I have no intention of paying you if you win the case on July 5 or this one on October 4, 2013 as you deserve nothing but a good kick in the bum by those authorities and the police for wasting their times with false cases and abuse of the legal system (which you habitually do).

In reality you are not getting victimised by me, but I am being victimised by you as you tell straight plane out lies in knowing what you are doing to receive money by fraud.

I will never change from this that I put on this blog, never give in and I will fight you all the way to death just know this.

The war between us is on, NOT OFF, and I will never bow down to a thief and court abuser like yourself.

So enjoy yourself fidgeting as it is going to stay on and not off as I am not going to give in in any time coming and will never recognise where I am wrong, also I will never pay you one red cent and if a debt collector pays you - that is his fault and I will refuse to pay him

I will state no more but this is my answer to a thug, court abuser, liar and thief like yourself.

You are very evil mate just know that.

I promise Gary and all others, I stand for truce and justice.

Not gay marriage which is nothing but evilness and makes me sick in the stomach to see two men or two women get married in God

this is totally blasphemous towards God, makes God very angry and will bring his judgement down on all who do such evil.

John Christopher Sunol.

37 The letters which Mr Sunol wrote to Mr Burns are dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013. They make similar allegations against Mr Burns and refer to him in the same derogatory terms. The 29 July letter accuses Mr Burns of harassing him and telling lies about him to the 'courts'. In the 26 August 2013 letter Mr Sunol accuses Mr Burns of "continual abuse of the law and perverting the cause (sic) of justice." He also said he had given "false statement" to the ADT. In the letter of 2 September 2013 Mr Sunol calls Mr Burns a "liar" and a "trouble maker". In the letter of 4 September 2013, Mr Sunol writes that:

You have no right to take me to court on such as you are only wasting the time of the ADT and the Anti-Discrimination Board on hated and bias towards me - that is all it is.

As I am not going to listen to a person who abused the courts like yourself, tells lies and tries to steal money off me as you do.

In the letter of 16 September Mr Sunol refers to Mr Burns as a "bastard who misuses the law all of the time to get money and to get what you want" and an "internet thug".

Assessment of victimisation complaints

38 The material reproduced and set out in bold font above contains particularly abusive, derogatory and inflammatory language directed to Mr Burns personally. Mr Sunol calls Mr Burns a "thief" and accused him of stealing money from him. He also accuses Mr Burns of abusing the court system, fraudulently taking him to the Tribunal and making up lies about him in the Tribunal. Other descriptions of Mr Burns include "internet thug", "asshole", and "evil man". A reasonable person reading those publications would consider them to give rise to an "injury" in the form or offence or insult, and therefore to cause Mr Burns to suffer a detriment.

39 The next question is whether the detriment to which Mr Burns has been subjected was 'on the ground of' one of the matters 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 the things listed in s 50(1)(a) to (d) must be at least one of the "real", "genuine" or "true" reasons for subjecting that person to a detriment.

40 In 2012 Mr Burns brought proceedings in this Tribunal against Mr Sunol for homosexual vilification and victimisation. 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 victimisation, and ordered Mr Sunol to pay compensation to Mr Burns and issue a public apology. The six publications that form the current complaint of victimisation were published between 29 July 2013 and 16 September 2013.

41 Mr Sunol refers specifically to the Tribunal's 2012 decision when he says "- then when he won $11,000 off me by fraud in the ADT in 2012 he demanded the money straight away when I did not have it. He was even going to send a debt collectors around." Mr Sunol also refers to the hearings in this Tribunal scheduled for 5 July and 4 October. He expresses the view that Mr Burns is victimising him because he is receiving money "by fraud".

42 In a letter he wrote to the President of the Anti-Discrimination Board in response to this complaint dated 4 September 2013, Mr Sunol denies victimising Mr Burns saying that he is "only putting out my feelings towards him as he has set me up and framed me with Pirate from zgeek, Rod Swift and others of such both online and offline by putting false accusations on me."

43 Mr Sunol either misunderstands or knowingly ignores the victimisation provisions in the Anti-Discrimination Act. We are satisfied that his explicit and consistent references to the proceedings under the Anti-Discrimination Act throughout the publications demonstrate that those proceedings are at least one of the "real", "genuine" or "true" reasons for Mr Sunol's abusive and derogatory language towards Mr Burns. The references to proceedings in the Local Court and the abusive and derogatory comments about that issue do not constitute victimisation because they do not relate to proceedings under the Anti-Discrimination Act.

44 Mr Burns' complaint of victimisation is substantiated in relation to the material set out in bold on Mr Sunol's blog and in letters to Mr Burns dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013.

Remedies

Background

45 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.

46 We have found four separate publications on Mr Sunol's blog site to constitute homosexual vilification. We have also found the complaint of victimisation to be substantiated in relation to the abusive and derogatory references to Mr Burns which were made because he brought proceedings against him in the Tribunal. 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).

47 Mr Burns seeks damages and an apology to homosexual men and himself. Mr Burns also seeks an order for Mr Sunol to remove from every website controlled by him statements about Mr Burns, homosexuals and homosexuality within 14 days of the decision.

48 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 within 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.

49 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.

50 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.

Evidence relating to damages

51 Mr Burns gave evidence that he did not read Mr Sunol's blog on line but read a version that was sent to him by one of his supporters. He said he was disgusted with it. Mr Burns also gave evidence that he has been a victim of gay hate crimes and suffers from post-traumatic stress disorder. When viewing material on Mr Sunol's blog he says he feels as if he is being bashed again.

52 Mr Burns says he wants to know what Mr Sunol is writing on his blog because the Tribunal has previously ordered Mr Sunol to refrain from posting material which is in breach of the homosexual vilification provisions. Mr Burns wants to know if Mr Sunol is complying with those orders. It is clear to him that he is not. Mr Burns wants Mr Sunol to stop posting vilifying or victimising material on his blog.

53 In relation to the victimisation complaint, Mr Burns says that the statements Mr Sunol makes about him damage his public profile.

Remedies for vilification complaints

54 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.

55 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.

56 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, 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.

57 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.

58 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.

59 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 was provided with the information by others. He says that one reason he did so was to check whether or not Mr Sunol had complied with the Tribunal's 2012 orders.

60 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. 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

61 The victimising conduct was insulting and defamatory words published on Mr Sunol's website and written in letters to him. We assess his damages overall for victimisation to be $2,000.

62 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:

(a) the image of a video clip "Antichrist in Chief" with a graphic of a man sodomising another man in conjunction with the following comment from Mr Sunol:

"Thank god for Russia's Fag law. Russia has a law that bars the public discussion of gay rights and relationships anywhere near children. And Antichrist Obama doesn't like it."

(b) the words, "I agree with Fred over this, lets pray for Salvation from God and know that the Russian people are good people and they have got it right with the GLSBT and Rainbow people who are in very evil groups driving by the devil to create troubles. "

(c) the image of a video clip "DEATH PENALTY 4 FAGS" with the comment "All nations should follow God in requiring the death penalty for sodomy" and

(d) the image of a video clip entitled "GOD H8S FAG MARRIAGE" and the comment that "I agree with this as God not only hates gay marriage, Gay Marriage is an abomination to Him ..."

(2) The following complaints of victimisation are substantiated:

The passages in bold set out at 36 above.

The passages in the letters dated 29 July 2013, 26 August 2013, 2 September 2013, 4 September 2013 and 16 September 2013 reproduced 37.

(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 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 orders of the NSW Civil and Administrative Tribunal (NCAT) made on 14 May 2014.

On 11 August 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 $5,000 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 14May 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 10.00 am 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