Geoffrey McKee, father of serial Homophobic cyber stalker Luke McKee, a defendant under the Anti-Discrimination Act 1977 (NSW), was found to have unlawfully vilified male homosexuals by suggesting they (male homosexuals), are 3 times more likely to molest male children.
John Christopher Sunol pleaded guilty in the Newcastle Local Court on the 2 March 2017 to using a carriage service to cause offence.
The Magistrate’s orders were that the offender John Christopher Sunol, is to be released under section 19B ( 1 ) ( d ) of the Crimes Act 1914 ( Commonwealth ), without proceeding to conviction on the following conditions ;
The offender gives security in the sum of $1, 000. The offender to be of good behaviour for 2 years. Sunol is not to continue any activity with a Commonwealth carriage service which identifies me or names the victim Garry Burns.
His Honour made it very clear to Mr Sunol that if he breaches the orders he could receive a jail penalty on his return.
Ex-NRL and Manly Sea Eagles star Ian Roberts calls out Larry Pickering for “homophobic” pillow-biter line
NSW Crest Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation:
Balzola v Burns  NSWCATAD 246
6 July, 14 October 2016
Date of orders:
31 October 2016
31 October 2016
Administrative and Equal Opportunity Division
Marks ADCJ, Principal Member
Charge of contempt – application by legal practitioner for finding of contempt against party to proceedings -principles applying to contempt in the face of the Tribunal-held contempt not established-application dismissed
Civil and Administrative Tribunal Act, 2013, ss73, 102
District Court Act, 1973, ss199, 200, 202
Anti-Discrimination Act, 1977 (NSW)
Burns v Sunol  NSWCATAD 178
Coward v Stapleton (1953) 90 CLR 573
Attorney-General v Leveller Magazine  AC 440
Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW)  NSW IRComm 387
Harkianakis v Skalkos (1997) 42 NSWLR22
Attorney-General v Times Newspapers  AC 273
Bhagat v Global Custodians Ltd  NSWCA 160
John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465
Scott v Scott  AC 417
Fraser v The Queen  3 NSWLR 212
Re William Thomas Shipping Co Pty Ltd  2 Ch 368
The Queen v Payne  1 QB 577
Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354
Wilshire-Smith v Voltino Bros Pty Ltd  FCA 138
Attorney General of NSW v Dean (1990) 20 NSWLR 650
Prothonotary of the Supreme Court of NSW v Katelaris  NSWSC 389
Robert Balzola (Applicant)
Garry Burns (Respondent)
J Loxton (Applicant)
Robert Balzola and Associates (Applicant)
Garry Burns (Respondent in person)
REASONS FOR DECISION
Background to the proceedings
By application brought in this Tribunal, the applicant Robert Balzola seeks a finding pursuant to section 73 of the Civil and Administrative Tribunal Act, 2013 (“the Act”) that the respondent, Garry Burns be found in contempt of this Tribunal.
The application arose out of proceedings before this Tribunal between the respondent as applicant and John Sunol as respondent, in which the applicant in these proceedings had represented Mr Sunol as his solicitor. I shall henceforth refer to those proceedings as “the vilification complaints”. The vilification complaints proceedings were comprised of three complaints initiated by Mr Burns against Mr Sunol alleging, inter alia, homosexual vilification and inappropriate conduct with children by reason of material published on a website operated by Mr Sunol. Those complaints had been referred to the Tribunal by the President of the Anti-Discrimination Board for determination as to whether the material published on the Internet website was unlawful under provisions of the Anti-Discrimination Act, 1977 (NSW). Mr Sunol sought the summary dismissal of each of the complaints under section 102 of the Act on certain grounds.
The applications for summary dismissal came on for hearing before a Principal Member of this Tribunal, A. Britton, on 1 June 2015. The applications were dismissed by order made on 25 August 2015 and on that date the Principal Member published comprehensive reasons for her decision, which are reported at Burns v Sunol  NSWCATAD 178. The reasons for decision consider the relevant principles upon which a complaint might be summarily dismissed, the powers of the President of the Anti-Discrimination Board, the relevant provisions of the Anti-Discrimination Act and the state of the evidentiary material before the Principal Member. The decision involves an application of the relevant legislation and principles to that evidentiary material. The only evidentiary material before the Principal Member consisted of certain documents filed in connection with the proceedings and in connection with the application for summary dismissal, and it appears that no oral evidence was given.
The applicant in these proceedings is noted in the coversheet of the reasons for decision of the vilification proceedings as being the solicitor representing the respondent Mr Sunol. In the course of giving evidence in these proceedings, the applicant said that he appeared with Mr Sunol during the course of the hearing before the Principal Member, assisted his client and, on occasions, assisted the Tribunal directly when asked to do so.
The charge of contempt
These proceedings first came on for hearing before me on 6 July 2016. At that stage, the Application filed by the applicant did not contain any details of the contempt alleged against the respondent.
It is a fundamental concern that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton (1953) 90 CLR 573 at 579-580 the High Court of Australia said:
[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs  VicLawRp 16;  VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott  AC 312 at 315.
Coward v Stapleton was applied in Australian Building Construction Employees’ and Builders Labourers’ Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine  AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.
I indicated to the applicant that I was not prepared to conduct the proceedings unless a charge of contempt and particulars thereof had been formulated by him, and the respondent had been given an appropriate opportunity to consider the charge and particulars, and to respond. Counsel for the applicant, who had very recently been briefed in the matter concurred with this approach and applied for an adjournment. The respondent agreed that the matter should be adjourned for this purpose, and because of such agreement, the adjournment application was granted with orders being made for the filing of evidentiary material and submissions by both parties.
When the matter came on for hearing again on 14 October 2016, the applicant had formulated a charge of contempt. The document refers to the applicant in these proceedings as being the respondent in the proceedings before the Principal Member; and the respondent in these proceedings as being the applicant. This is, of course, incorrect because Mr Sunol is not a party to these proceedings, Mr Balzola is clearly the applicant bringing the charge on his own behalf against the respondent, and Mr Burns is clearly the respondent to the charge. The proceedings were conducted before me on the basis that the incorrect appellations utilised in the form of the charge were disregarded. In order to make sense of the form of the charge for the purpose of reproduction in these reasons for decision, I have inserted the correct reference to the parties. Accordingly, the charge as formulated by the applicant is to be read in the following terms:
The applicant charges the respondent that the respondent is in contempt committed in the face of the Tribunal, in that during the course of the (vilification complaints) proceedings, the respondent by his letter of the 18 August 2015, addressed to the Registrar of the Tribunal, sought to interfere or intended to interfere with the course of justice, by: –
(1) Making insulting and offensive comments, such comments being untrue, false and malicious as to the character and credit of the respondent’s solicitor, Mr Robert Balzola, with the intention of urging upon the Tribunal that it should reject the respondent’s defence in the proceedings on the basis of the respondent’s solicitor was not a fit and proper person to represent the respondent before the Tribunal, the solicitor being a racist, a person about to being (sic) struck off the roll of solicitors and a person who is about to be disciplined by the Tribunal for pernicious behaviour which verges on criminal behaviour; and/or
(2) That the letter sought to discredit and impugn Mr Balzola’s character with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal and thereby deter the Tribunal from making a fair and just assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf the respondent by Mr Balzola cannot be trusted or believed; and/or
(3) The respondent had exacerbated his alleged breach of the Anti-Discrimination Act by retaining Mr Balzola.
The applicant relies upon the letter from the respondent to the Registrar of the Tribunal dated 18 August, 2015 with reference to File Nos 1410717, 1410281 and 1410195 and, in particular, the applicant relies on the following passages set out in the last three paragraphs of the said letter: –
(1) “I can confirm that Anti-Islam Solicitor Robert Remo Balzola is under investigation by the Legal Services Commissioner in relation to these kinds of activities”;
(2) “…it’s only a matter of time before Mr Balzola loses his licence to operate as a Solicitor”;
(3) ”Mr Balzola will be struck off the Solicitor’s register within some time in the near future”; and
(4) “The good news will be that Robert Balzola will have to come before a Judicial Member of NCAT because of his own pernicious behaviour which I allege verges on criminal.”
The evidentiary background
In order to fully consider the letter which is referred to in the Charge and in the Particulars, it is first necessary to refer to a letter dated 17 August 2015 which had been forwarded by Mr Sunol to the Registrar of this Tribunal with respect to the three vilification complaints matters. The letter acknowledged receipt of three CDs which Mr Sunol said “purported to be the full recordings of the public hearing on July 15, 2015.” The letter complained that the CDs did not contain a record of certain matters which had arisen during the course of the hearing before the Principal Member. Specifically, the letter alleged that “…an important time interval of the public hearing has been censored or deliberately removed from the duplicate recordings I paid for…”. The letter then went on to specify what was alleged to have been omitted from the recording. In general terms, this material was said to cover an incident involving Mr Burns asserting that he had behaved in an inappropriate manner. It was alleged that the Principal Member asked Mr Sunol and Mr Balzola to leave the hearing room “while she engaged in private conversation to persuade (Mr Burns) to calm down and complete the hearing.” The letter stated that Mr Sunol was concerned that untrue information might have been conveyed to the Principal Member in his absence. The Registrar was asked to investigate the matter and to provide a recording of the proceedings without any deletions.
The letter from Mr Burns to the Registrar dated 18 August 2015, the contents of which are at the heart of the Charge in these proceedings, was expressed to be written in response to the letter from Mr Sunol of the previous day. The letter denied that he had participated in any conversation of a private manner with the Principal Member and that he had been left alone with her at any time. He complained that Mr Sunol was a liar and that his letter was “designed by his lawyer through him for the purpose of the Appeal claiming “bias once the complaint against Sunol is substantiated.” In referring to Mr Balzola as the solicitor for Mr Sunol, Mr Burns described him as being an “Anti-Islam Solicitor”. The letter then concluded with the three references to Mr Balzola which are set out in the Charge particulars.
The Tribunal records indicate that there was, in fact, no hearing conducted on 15 July as asserted in the letter from Mr Sunol of 17 August, and that the hearing date was 1 June 2015. The letter of 17 August preceded publication of the reasons for decision by eight days.
The respondent conceded during the course of the hearing that he was the author of the letter of 18 August 2015, and I find that he communicated it to the Registrar on or about that date.
Counsel for the applicant asserted that I should infer that the letters of 17 and 18 August were brought to the attention of the Principal Member by the Registrar. I am not prepared to make any such inference. The letter of 17 August was directed solely to the contents of a recording of the proceedings, and as to whether anything had been omitted from it. It was not addressed to the Principal Member, and involves a matter solely within the province of the Court Reporting Service. There is nothing contained within the reasons for decision which would give any hint that this was a matter which had been brought to the attention of the Principal Member some eight days before the publication of her reasons, and more than two months after the hearing. Applying the relevant standard of proof, which I shall shortly discuss, no such inference can be drawn.
I admitted into evidence an affidavit sworn by the applicant dated 31 May 2016 for the purpose of describing the context in which the alleged contemptuous material was created by the respondent. It annexes a number of extracts from the respondent’s website entitled “Garry Burns Gay Anti-Discrimination Activist” dating back to September 2014. These extracts include criticism of the applicant for representing certain clients opposing the construction of a mosque in the ACT and Bendigo, labelling him as “Anti-Islam Solicitor Robert Balzola”, urging persons not to use his services, and referring to a number of matters heard in this Tribunal in which the applicant acted as solicitor for a party opposing the respondent declaring that “Anti-Islam Solicitor Robert Balzola loses another encounter.” Another annexure is a copy of an email from the respondent to the Islamic Council of NSW which refers to migration agency services provided by the applicant, and informing the Council that the applicant “uses Islam for the pre-dominant purpose of inciting hatred against Muslim Australians.” The annexures also contain references to media releases issued by the respondent. Included is an email from the respondent to the Sydney Morning Herald dated 27 September 2014 in which he refers to anti-discrimination proceedings taken by him against another person represented by the applicant, again referring to the applicant as an “Anti–Islam campaigner”. There are other documents in similar vein which I shall not describe.
By emails dated 14 October 2014 which appear to be addressed to a number of NSW parliamentarians and to the Commissioner of Police, the respondent refers to the fact that the applicant is the solicitor for a named client in connection with anti-discrimination proceedings brought by the respondent. The email contains a number of scurrilous, irrelevant and prima facie defamatory references to the applicant which I shall not dignify by repeating them.
By email from the respondent to the applicant dated 22 October 2014, the respondent referred to three named persons whom the applicant was representing in certain matters involving the respondent. He asserted that he would be successful in the proceedings, referred to the clients of the applicant in disparaging terms, and described the applicant in equally disparaging terms. The email finished by referring to men from two named European countries, with whom the respondent had apparently slept, in disparaging terms, and the respondent described himself as “Anti-Discrimination Campaigner and Public Interest Litigant.” The applicant’s affidavit annexes copies of other email communications in the same vein. I should add that the respondent copied the applicant into all these emails.
It is clear from this documentation that there is a history of profound animosity directed by the respondent to the applicant.
For completeness, and although they were not the subject of any controversy during the course of the hearing, I note the following:
The respondent willingly personally appeared at each of the two hearings before me.
The respondent was at all times fully informed of the contents of the charge and particulars ultimately brought against him and participated in the hearings representing himself.
The jurisdiction and powers of the Tribunal in relation to contempt
This Tribunal is a statutory tribunal, and its jurisdiction and powers are circumscribed by the provisions of the Act. Relevantly, they are to be found in section 73 which is in the following terms:
73 Contempt of Tribunal
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
Accordingly, the stated provisions of the District Court Act are taken to apply to the jurisdiction and powers of the Tribunal to deal with contempt, modified as set out in section 73. Those provisions are in the following terms:
(1) In this section,
“contemnor” means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.
(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.
(3) Where the contemnor is brought before the Court, the Court shall:
(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,
(b) require the contemnor to make his or her defence to the charge,
(c) after hearing the contemnor, determine the matter of the charge, and
(d) make an order for the punishment or discharge of the contemnor.
(4) The Court may, pending disposal of the charge:
(a) direct that the contemnor be kept in such custody as the Court may determine, or
(b) direct that the contemnor be released,
and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.
(5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.
(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.
(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days.
(8) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
200 Fines under sec 199
(1) A fine imposed under section 199 is payable to the registrar for such proclaimed place as the Court directs.
(2) Payment of a fine imposed under section 199 may, if the Court so orders, be enforced, subject to the civil or criminal procedure rules, as if the amount of the fine were a judgment debt, the person upon whom the fine was imposed were a judgment debtor and the registrar were a judgment creditor.
(3) The amount of any fine paid to or recovered by the registrar under this section shall be paid to the Consolidated Fund.
202 Stay of contempt proceedings
(1) At any stage of any proceedings under section 199 or 200, the Court may, on terms, order that the proceedings be stayed.
(2) Where the Court orders that proceedings be stayed under subsection (1) and an appeal is brought under section 201, the stay of proceedings shall continue until the appeal is disposed of or until the Court or the Supreme Court otherwise orders.
(3) Except as provided in this section or as directed by the Supreme Court, an appeal under section 201 shall not operate as a stay of proceedings.
Principles applying to contempt proceedings
Whether the respondent is guilty of contempt of the Tribunal is to be determined by applying the accepted common law principles as established by relevant authorities in this area. The charge brought against the respondent was that he was guilty of contempt in the face of the Tribunal. It is hopefully not necessary to cite authority that such asserted contempt is to be treated as criminal contempt, incorporating the necessity to establish proof to the criminal standard. Such contempt may be contrasted with civil contempt which occurs, by way of example, in circumstances where a party to proceedings has refused to comply with a court order.
I have not been referred to any authority which deals with the particular circumstances of these proceedings involving, as they do, an attack on the integrity of a legal practitioner representing a party. Accordingly, my review of relevant authorities will need to examine the general principles applying to contempt in greater detail than might otherwise be required.
I had occasion to deal with the relevant principles applying to criminal contempt when sitting as a member of a Full Bench of the Industrial Relations Commission of New South Wales in Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW)  NSW IRComm 387. Rather than attempting to paraphrase my summary of the relevant principles in those proceedings, and the discussion of a number of important authorities, I have set out an extract hereunder, with modifications necessitated by the particular circumstances of these proceedings. The extract contains a detailed examination of some aspects of the legal principles dealing with contempt, and I shall refer to many of these detailed matters in determining the outcome of these proceedings.
31 ……… Criminal contempt involves “an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” (per Lord Diplock in the House of Lords in Attorney-General v Leveller Magazine  AC 440 at 449.) The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings “or by deterring other people from having recourse to courts of justice in the future for the vindication of their lawful rights or for the enforcement of the criminal law.” (per Lord Diplock at 449). There are varying forms of conduct which have been said to constitute contempt. That which has been most commonly dealt with in decided cases has been the publication of material either before or during the course of actual court proceedings. Some of the conduct complained of has been said to be directed to the parties to the proceedings themselves; other conduct has been said to be directed to the court (including jurors) or the public generally. Another major category of contempt is the adverse treatment of witnesses either before or after the trial.
32 A general statement of principle which is useful in understanding the background against which these proceedings are being conducted is contained within observations made by Lord Diplock in the House of Lords in Attorney-General v Times Newspapers  AC 273, commencing at 307. His Lordship said:
My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. ‘Contempt of court’ is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.
One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a ‘civil contempt.’ The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.
All other contempts of course are classified as ‘criminal contempts,’ whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences. Such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large.
In the nature of things the applicant would be primarily concerned with the effect of the alleged contempt upon his own interests in that litigation, and the argument addressed to the court would be mainly directed to this. This is reflected in the judgments in the numerous cases on contempt of court which appear in the reports. With relatively few exceptions, they concentrate upon the particular prejudice likely to be caused to a party in that litigation itself by the particular conduct that is the subject of complaint. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist. This is not surprising since until the Administration of Justice Act 1969 there was no appeal in cases of criminal contempt. The decisions are those of courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing.
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. (at 307-9)
33 In considering matters of this kind the courts have, however, been careful to balance the necessity to preserve the attainment of justice against fundamental rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them. This requirement to balance what may be competing, and indeed, conflicting interests all of which are designed to enhance the public interest, has resulted in a necessarily cautious approach to be taken to a determination of whether conduct constitutes criminal contempt. This matter was summarised by Lord Morris in Attorney-General v Times Newspapers (previously referred to) commencing at 302 in the following manner:
My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well- disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a design to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.
Various types of behaviour which in the past have been brought to the notice of courts as involving ‘contempt’ have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications. Nevertheless the cases illustrate certain general principles as to what is or is not permissible and courts have as a rule found no difficulty in deciding whether a complaint is or is not well founded. Certain examples may be given. Grossly irregular behaviour in court could never be tolerated. Nor could publications which would prejudice a fair trial. Thus if someone was awaiting trial on a criminal charge much harm could be done by the publication of matter which might influence potential jurors to the prejudice of the accused. There might be steps taken wrongfully to influence witnesses – as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any pending litigation and the stage it had reached. A court would not be likely to listen to a complaint that lacked substance. Indeed when the Divisional Court referred to the question ( Q.B. 710, 725) whether words complained of would ‘create a serious risk that the course of justice may be interfered with’ or when Lord Denning M.R, at p. 739, said that ‘there must appear to be “a real and substantial danger of prejudice” to the trial of the case or to the settlement of it’ useful reminders were given of the fact that ‘contempt’ is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find ‘contempt’ where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail.(at 302-3).
35 There are a number of other important English authorities which have discussed contempt as well as several important Australian authorities, including decisions of the High Court of Australia. However, the necessity to embark upon a detailed analysis and consideration of the authorities has been obviated because that task has recently been discharged by Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22. Beazley JA agreed with the reasoning of Mason P. Powell JA delivered a separate judgment.
36 The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour’s analysis and consideration of the relevant authorities and his Honour’s conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are:
- Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.
It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings…..
There is “a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material.” Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for “interference in the litigant’s freedom to conduct the litigation as he or she chooses.” Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere.
There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of “the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of ‘ordinary’ fortitude who might be capable of influence by similar pressure applied in similar circumstances.” (Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd  NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par :
These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.
In the same case, in agreeing with the Chief Justice, Ipp AJA said at par :
[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.
- In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: “Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper….” (at 30).
- In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be “special defences such as fair comment and justification” which are available.
In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at p 294) is apposite:
The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.
- The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification ….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like.
The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution. So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it. (at 42)
38 In view of the fact that the majority of the charges against the respondent are framed by reference to the bringing to bear of unreasonable pressure upon the applicants in the substantive proceeding in the way particularised, it is appropriate to refer to decided cases which have discussed the nature of the pressure required to constitute contempt.
39 In John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471, Mahoney JA stated that a superior court had the power and the duty to ensure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction, citing Viscount Haldane LC in Scott v Scott  AC 417 at 437 for the proposition that it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. Mahoney JA went on to refer to an attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstance, be punished as contempt, citing the cases referred to in Fraser v The Queen  3 NSWLR 212.
41 As already noted above, Mason P in Harkianakis conducted a general review of the law in relation to contempt and referred to the need to demonstrate, to the criminal standard, that a contempt had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case”. At 28 et seq Mason P continued:
The cases have recognised a category of criminal contempt in which improper pressure is placed on the party to court proceedings through the public dissemination of material … the gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wished to seek curial vindication of their rights. … the gravamen of this particular type of contempt is the potential interference of the litigant’s freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action or a defence after setting it in motion. The latter option may be exercised up until the time the court delivers judgment. The modern pre-occupation with ‘alternative dispute resolution (ADR)’ recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the Public interest for several obvious reasons. It follows that (improper): ‘… interference with negotiation towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense (Sunday Times case at 317), per Lord Simon (see Attorney-General v Times Newspapers Ltd  AC 273).
42 Later, at 32, his Honour stated:
In an adversary system, the law’s concern is to protect from improper interference the litigant’s freedom to choose whether or not to initiate, continue or discontinue legal proceedings. It is irrelevant that the principal proceeding may be doomed to success or failure.
43 In Re William Thomas Shipping Co Pty Ltd  2 Ch 368 Maugham J considered the effect of a published interview criticising the application for the appointment of a receiver in which a director expressed the view that the appointment had smashed the goodwill and organisation of a business in a day, and no one in shipping circles could understand the line of conduct. At 376, his Honour stated:
Dealing as I am here, with a case very different from that which came before the court in The Queen v Payne  1 QB 577, I must express my opinion that the jurisdiction of the court is not confined to cases where the order of the court or the future orders of the court are likely to be directly affected in some way. If it was so confined, I doubt whether there would be any limit to what a litigant, or some other person, might say pending the hearing of an action in the Chancery Division, unless, indeed, it could be shown that possible witnesses in the case were being interfered with. I think that to publish injurious misrepresentations directed against the party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the cause of justice because it may, in the case of the plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he would otherwise not come to, for like reasons. I think that consideration has peculiar weight in the case of a representative action such as this, being an action of a kind which is generally brought in the Chancery Division.
44 In that case, his Honour had particular concern for a plaintiff with a small stake who, by pressure of adverse comment about his proceedings, may be improperly persuaded to take action in the running or settlement of the case which was not in the interests of the other debenture holders whom he was representing.
45 In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354, Burchett J, at 362, stated:
‘Improper pressure’ or ‘improper interference’, used in some of these authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. How much this is a problem for the law of contempt as a practical matter may be a subject for debate. As I understand the authorities, some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the intention of so interfering whether or not it would otherwise be an improper or a proper action, that tendency and that intent may be enough to establish a contempt of court. But as Mason P pointed out in Harkianakis at 28, intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown, the question whether any pressure was or was not improper may be the crucial issue. Thus, in Wilshire-Smith v Voltino Bros Pty Ltd  FCA 138; (1993) 41 FCR 496, a case in which (as appears at 506) there was no intention to interfere with the due administration of justice, but what was done had that tendency, O’Loughlin J said (at 505):
The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate.
46 In Wilshire-Smith, O’Loughlin J, at 505, in dealing with the notion of pressure said:
In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain would ever establish the existence of a risk to inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.
There is one further decided case to which reference should be made. It is a decision of Hoeben J (as his Honour then was) in the Supreme Court of NSW in Prothonotary of the Supreme Court of NSW v Katelaris  NSWSC 389. The matter came before Hoeben J by summons filed by the Prothonotary seeking declarations in the following terms:
- A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury “Regrettably, the next generation will suffer for your ignorance”, which statement had a tendency to interfere with the administration of justice.
A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely “Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales” which statement had a tendency to interfere with the administration of justice.
The particulars of contempt alleged in the summons were as follows:
- On 2 March 2006, at the District Court at Newcastle, the Crown presented an indictment against the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, between 3 December 2004 and 27 January 2005, at Salisbury in the State of New South Wales (ss 23(2)(a), 33(3)(b) Drugs Misuse and Trafficking Act 1985) (the charge).
The defendant pleaded not guilty to the charge, a jury was empanelled and the trial proceeded on 2 March 2006, 3 March 2006, 6 March 2006 and 8 March 2006.
The defendant represented himself throughout the course of the trial.
On 8 March 2006, the jury returned a verdict of guilty in relation to the charge.
After the trial judge had discharged the jury, and whilst the jury were in the process of leaving the court, the defendant said to the jury, “Regrettably, the next generation will suffer for your ignorance” (the first statement).
The first statement visibly upset some of the jurors.
After leaving the court, the defendant participated in an interview with the local television station, NBN Channel 3 (the interview).
In the course of the interview, the defendant made the following statement (the second statement):
“Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales.”
- At the time of the interview it was likely that the interview would be broadcast on the NBN television news that evening.
The conduct of the defendant in making the first statement and the second statement had a tendency as a matter of practical reality to interfere with the administration of justice in that:
(i) the first statement, made in the presence of the jurors, was abusive and had a tendency to deter those jurors in relation to their participation in future trials;
(ii) the first statement was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;
(iii) the second statement was made to the media, and was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;
(iv) the second statement had a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in the proceedings.”
In the course of his judgment, Hoeben J said:
30 It is trite law that proof of an intention to interfere in the administration of justice is not an ingredient of the charge. This question was comprehensively analysed by the Court of Appeal in Attorney General of NSW v Dean (1990) 20 NSWLR 650. At 655E the court said:
“The opponent repeatedly laid stress upon the absence of any intention to interfere in the administration of justice. However, it is clear that although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge.”
At 656A the Court said:
“The matter of overriding importance is to prevent interference with the proper course of trials; that interference is just as real and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear. It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused.
The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the court’s decision as to penalty…
The opponent’s ignorance of the law of contempt cannot excuse him from its obligation. We have concluded that when the opponent made the three statements complained of he did so with intention that they should be included in the material, upon the basis of which the media representatives would later make a decision to compose their program. In the circumstances in which the statements were made before cameras, microphones and other recording equipment and thirty journalists, it is completely unrealistic to suggest that the opponent should be treated as if he were having a private conversation. The whole point of the media interview, was the communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”
31 In this case it is clear that the defendant intended to use the words which he said, although he did not have the specific intent of interfering with the administration of justice. I do not find, however, that the defendant’s statements, both in court and to the journalists, were premeditated or planned.
32 Because these are criminal proceedings, the standard of proof is beyond reasonable doubt. The test for contempt is whether the conduct in question had a tendency to interfere with the administration of justice. For the offence to be made out, I have to be satisfied beyond reasonable doubt that either or both the first statement and the second statement had as a matter of practical reality an objective tendency to interfere with the administration of justice. The test is an objective one, so that the person to whom the conduct or words were directed does not necessarily have to be intimidated or deterred. All that is necessary is that the requisite tendency is present.
33 The cases recognise that it is a contempt of court to threaten or take reprisals against judges, witnesses and legal practitioners involved in the judicial process in relation to particular legal proceedings. As the extract from Re Johnson makes clear, that principle applies equally to jurors. Action taken by way of reprisal may constitute a contempt whether or not proceedings remain pending because such conduct may interfere with the administration of justice as a continuing process by discouraging or influencing participation of such persons in future legal proceedings.
Observations of Lord Denning MR at 719 and of Pearson LJ at 728 were to similar effect.
36 I am satisfied beyond reasonable doubt that a contempt of court has been established in relation to both the first statement and the second statement.
37 In relation to the first statement, … as the trial judge told the jury in this case when they were discharged, the jury plays a critical role in the administration of justice in this State. It performs an onerous and difficult task carrying with it great responsibility. It is therefore important to ensure that the integrity of persons who are empanelled to sit on a jury and persons who may be so empanelled in the future is not called into question or subjected to abuse. Conduct which has the tendency to deter jurors from serving again and to deter potential jurors from serving at all has as a matter of practical reality an objective tendency to interfere with the administration of justice.
38 The first statement by the defendant was clearly addressed to the jury. Viewed objectively, it constituted a form of abuse directed at the jury by way of reprisal for their verdict. It had the necessary tendency to influence and deter those jurors and jurors generally from participating in future trials and as such it amounted to a contempt of court.
39 In respect of the second statement this was made to a group of journalists, accompanied by television cameramen, with the clear intention that the remarks be promulgated as widely as possible. In that regard the passages from Attorney General for NSW v Dean previously quoted are apposite – “the whole point of the media interview was a communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”
40 In the second statement the defendant’s characterisation of the jurors as sheep constituted a clear and intentional attack upon their independence, integrity and impartiality. The second statement can also be correctly characterised as a form of abuse and directed at the jury by way of reprisal for their reaching a guilty verdict. The clear message for potential jurors who might have seen the report on the television news was that serving on a jury was a thankless task for which abuse and public humiliation were likely consequences. The second statement had as a matter of practical reality a real tendency to undermine public confidence in the administration of justice by suggesting that the jurors had not properly discharged their duties in the proceedings.
41 It follows that each of the first and second statements constituted a separate and clear contempt of court. I make declarations in accordance with paragraphs 1 and 2 of the summons. The defendant is convicted of the two counts of contempt which have been brought against him and as are particularised in the summons.
I add for completeness that his Honour imposed a suspended prison sentence on the defendant of 12 months’ imprisonment.
The applicant’s submissions
In written submissions, counsel for the applicant described the allegations made by the respondent as contained in the letter to the Registrar as “false, untrue and malicious.” In oral submissions, he also described them as being defamatory. Counsel ascribed two reasons why the respondent had made these allegations. He said that firstly, by making these “insulting, offensive and untrue malicious statements”, the respondent had sought to urge the Tribunal to reject his client’s defence to the complaint by reason of the impugned character and credit of his client’s “solicitor of choice.” The second reason was that the letter “sought to discredit and insult Mr Balzola with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal. The letter seeks (to) deter the Tribunal from making a fair and unbiased assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf of (Mr Sunol) cannot be trusted or believed and further, (Mr Sunol) has exacerbated his breach (of the anti-discrimination legislation) by retaining the applicant.”
The submissions emphasised the duty of legal practitioners appearing before a court, and also a tribunal such as this Tribunal, to act with integrity, candour and honesty. It was said that by falsely attacking the applicant’s character and reputation as a solicitor the respondent had sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was interfering with the administration and course of justice.
It is first necessary to consider the contents of the letter of 18 August 2015 which constitute the particulars of the Charge. It contains allegations that the applicant conducted himself in a manner which is antagonistic to those practising Islam, that the applicant was under investigation by the Legal Services Commissioner in relation to his anti-Islam activities, that he would shortly be struck off the roll of Solicitors and that he had acted in a pernicious manner which “verges on criminal.”
As I have previously indicated, the respondent conceded that he was the author of the letter and the author of the material contained within it. Such evidence as has been led in these proceedings is to the effect that the only investigation about the applicant conducted by any authority concerning the applicant’s practise as a solicitor was a result of a complaint brought against him by the respondent, which was dismissed. There is therefore no demonstrated substance to the assertion that the applicant was under investigation or was in any danger of having his continued right to practice compromised. Furthermore, the only reference to any activities undertaken by the applicant with respect to the allegation that in some way he is “Anti-Islam” is to the fact that he represented two community groups opposing the construction of a mosque in two regional areas.
In these circumstances, I am persuaded beyond a reasonable doubt that the statements made by the respondent as contained in the particulars of the Charge were untrue and without foundation. Furthermore, I am persuaded beyond a reasonable doubt that the comments in the statement were malicious, insulting and offensive.
By reference to the authorities which I have set out above in some detail, it may be concluded, as I do, that:
The statements made by the respondent cannot be justified in any sense by reference to any “rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them.” (See the extract from the judgment of Lord Morris in Attorney-Gen v Times Newspapers previously referred to).
These statements may fairly be described as “conduct which was calculated so to abuse or pillory (a solicitor representing) a party to litigation or to subject him to such obloquy as to shame or to dissuade him from” representing that party (also based on the judgment of Lord Morris).
Nor can the statements made be justified in any sense by reference to any permitted “discussion of public affairs and the denunciation of public abuses, actual or supposed”.
The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like. These are matters which apply to the description of the applicant used by the respondent in the letter of 18 August 2015.
The attack on the applicant’s character and reputation initiated by the respondent concerned his representation of his client in proceedings before this Tribunal. Once a legal practitioner has been granted a right to represent his or her client, any undue and irrelevant attack on the character of the practitioner in his or her capacity as representing a client constitutes an attack on the processes of the Tribunal, and in appropriate circumstances, may constitute contempt. Legal practitioners are obliged to protect their reputations so as to be able to continue to attract and represent clients.
I conclude that, prima facie, in all the circumstances of these proceedings that the statements which were directed to the applicant who was the solicitor for Mr Sunol in the vilification complaints proceedings are capable of constituting contempt. I accept and agree with the submissions of the applicant that legal practitioners are required to act with integrity, honesty and candour in representing parties before this Tribunal. By falsely attacking the applicant’s character and reputation as a solicitor the respondent has sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was, prima facie, interfering with the administration and course of justice. Furthermore, the conduct of the respondent clearly was directed to the applicant personally in his capacity as solicitor for Mr Sunol. Legal practitioners are generally required to afford representation to persons who seek their services. As such, legal practitioners are entitled to afford representation to whomever they please, and the administration of justice and the management of our legal system is dependent upon these matters of fundamental concern. Any conduct which has the effect, or the tendency to dissuade legal practitioners from performing this valuable public service will, in appropriate circumstances, expose the proponent of such conduct to the risk of prosecution for contempt.
As the authorities to which I have referred to make clear, there is, however, one further fundamental element which must be established in order to conclude that the respondent is guilty of the contempt the subject of the Charge and particulars. In all cases it is necessary for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings. This is usually discharged by demonstrating that the contemptible material complained of has been appropriately and relevantly published. It is the publication of the inappropriate material which creates the prejudice or impediment to the administration of justice. Furthermore, the authorities to which I have referred make clear that there must be a public dissemination of material, which has a tendency to deter both an individual litigant, in this case through his solicitor, and litigants similarly placed who wish to seek “curial vindication of their rights” so as to create a “potential interference of the litigant’s freedom to conduct litigation as he or she chooses.” (Per Mason P in Harkianakis, previously referred to).
Publication was clearly demonstrated, by way of example, in Katelaris. The first statement was published to the jury, albeit they had already been discharged, and the second statement was published to the media.
There is, however, no such publication in the circumstances of these proceedings. The particulars of the Charge are confined to the letter of 18 August 2015. That letter is addressed to the Registrar, and the substance of the letter is in reply to the assertion made by Mr Sunol that omissions of a fundamental kind had been made from CD recordings made available to him and a concern that something of an improper nature might have occurred in the course of the proceedings. The clearly offensive material concerning the applicant was added gratuitously at the end of the letter of 18 August 2015. No inference can be drawn, as I have previously concluded, to the requisite criminal standard, that the person solely charged with determining the proceedings, namely the Principal Member, was informed about or was aware of the contents of that letter and the offensive material contained within it. Nor can it be inferred that the letter came to the attention of anyone other than Registry staff. On this basis, it cannot be concluded to the requisite standard that this limited publication of the offensive material would adversely impact on the administration of justice by the Tribunal.
Arguably, if the Charge and particulars had referred to material of the same offensive nature contained on the respondent’s website, and such material was capable of being linked to proceedings before this Tribunal with which the applicant was concerned as solicitor for a party, contempt might be more readily found to have been committed. However, such is not the case in these proceedings and I conclude that the limited publication of the offensive material to the Registrar is not capable of constituting contempt in all the circumstances of these proceedings. There is insufficient evidence to conclude that there has been an unjustifiable interference with the relevant proceedings before the Tribunal for me to conclude that the applicant has established beyond reasonable doubt by means of the public dissemination of material which is obviously and clearly offensive.
Nor has there been established to the requisite standard of proof that any of the three more general matters identified by Lord Diplock in Attorney-General v Times Newspapers have been established by reason of this limited publication. These are:
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.
Finally, I repeat that “… If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail. (Lord Morris in Attorney-General v Times Newspapers (previously referred to).
For all these reasons I conclude that the application must be dismissed.
The respondent did not seek any order for the payment of costs.
The application is dismissed.
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.
DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2016
FOR IMMEDIATE RELEASE
SYDNEY GAY RIGHTS ACTIVIST GARRY BURNS CLEARED BY MORWELL DETECTIVES OF COUNCILLOR CHRISTINE SINDT’S BLACKMAIL ALLEGATION
20 October 2016
Sydney Anti Discrimination Campaigner Garry Burns lodged a homosexuality vilification complaint under the Anti-Discrimination Act 1977 ( NSW ) against Councillor Christine Sindt on the 30 June 2015 over her publication to her Facebook page statement’s adverse to him and fellow homosexual men.
Those statements published to Councillor Sindt’s Facebook page compared homosexuals to paedophiles and suggested children were somehow at risk or in danger from homosexual men based on homosexuality as it’s reasoning.
Councillor Sindt was at the time of the lodgement of the complaint by Mr Burns a Councillor of La Trobe City Council.
On the 9 October 2015 at 1413 pm Councillor Sindt filed a complaint with Morwell Detective Raymond Coles that Mr Burns blackmailed her by email.
On the same day at around 1818 pm Councillor Sindt wrote to the President of the NSW ADB seeking a delay.
One of her reasons was :
- Garry Burns is under investigation by Morwell Criminal Investigation Unit for Blackmail.
Mr Burns has had a serious criminal allegation hanging over his head for over 12 months.
Mr Burns has not formally had any allegation put to him by Morwell detectives in relation to Councillor Sindt’s allegation.
“ Detective Raymond Coles moved so slow in his investigation of this matter one wouldn’t be able to hear his thongs slap”, said Mr Burns.
On the 20 October 2016 Mr Burns received a letter ( attached ) from Detective Coles stating in part;
“ I am writing to inform you that the matter has been investigated on the evidence supplied by Mrs Sindt. Based on the available material, we have established that the allegation does not amount to a criminal offence “.
“ I am very angry because I have had a serious criminal allegation hanging over my head for over 12 long months that carries 15 years aggregate imprisonment upon conviction in Victoria. All I did was send Councillor Sindt a without prejudice letter to settle the matter between us and I’m suddenly under investigation for the serious crime of blackmail ”, Mr Burns said.
Councillor Christine Sindt
I could talk about Pell’s notoriety within the church, his Ballarat time apparently lying to Australia about other Priests and clergy within the Catholic Church, the now apparent disgusting acts of Paedophilia towards girls and boys within the school structure, and Pell can still hold a “straight” face in front of cameras, denying the atrocious and disgusting acts of his priests in many parishes.
Pell, I say you have lied for many many years, and supported your paedophile priests in Australia with no regard to the children that were abused..
You, your so called religion, and your paedophilia priests should be put in jail the the rest of your lives. Pell you absolute low life should at the very least apologise to the children that your disgusting Catholic rapists assaulted.
SHAME SHAME SHAME
By Evelyn Schlatter and Robert Steinback
Ever since born-again singer and orange juice pitchwoman Anita Bryant helped kick off the contemporary anti-gay movement some 40 years ago, hard-line elements of the religious right have been searching for ways to demonize gay people — or, at a minimum, to find arguments that will prevent their normalization in society. For the former Florida beauty queen and her Save Our Children group, it was the alleged plans of gay men and lesbians to “recruit” in schools that provided the fodder for their crusade. But in addition to hawking that myth, the legions of anti-gay activists who followed have added a panoply of others, ranging from the extremely doubtful claim that sexual orientation is a choice, to unalloyed lies like the claims that gay men molest children far more than heterosexuals or that hate crime laws will lead to the legalization of bestiality and necrophilia. These fairy tales are important to the anti-gay right because they form the basis of its claim that homosexuality is a social evil that must be suppressed — an opinion rejected by virtually all relevant medical and scientific authorities. They also almost certainly contribute to hate crime violence directed at the LGBT community, which is more targeted for such attacks than any other minority group in America. What follows are 10 key myths propagated by the anti-gay movement, along with the truth behind the propaganda.
MYTH # 1
Gay men molest children at far higher rates than heterosexuals.
Depicting gay men as a threat to children may be the single most potent weapon for stoking public fears about homosexuality — and for winning elections and referenda, as Anita Bryant found out during her successful 1977 campaign to overturn a Dade County, Fla., ordinance barring discrimination against gay people. Discredited psychologist Paul Cameron, the most ubiquitous purveyor of anti-gay junk science, has been a major promoter of this myth. Despite having been debunked repeatedly and very publicly, Cameron’s work is still widely relied upon by anti-gay organizations, although many no longer quote him by name. Others have cited a group called the American College of Pediatricians (ACPeds) to claim, as Tony Perkins of the Family Research Council did in November 2010, that “the research is overwhelming that homosexuality poses a [molestation] danger to children.” A related myth is that same-sex parents will molest their children.
According to the American Psychological Association, children are not more likely to be molested by LGBT parents or their LGBT friends or acquaintances. Gregory Herek, a professor at the University of California, Davis, who is one of the nation’s leading researchers on prejudice against sexual minorities, reviewed a series of studies and found no evidence that gay men molest children at higher rates than heterosexual men.
Anti-gay activists who make that claim allege that all men who molest male children should be seen as homosexual. But research by A. Nicholas Groth, a pioneer in the field of sexual abuse of children, shows that is not so. Groth found that there are two types of child molesters: fixated and regressive. The fixated child molester — the stereotypical pedophile — cannot be considered homosexual or heterosexual because “he often finds adults of either sex repulsive” and often molests children of both sexes. Regressive child molesters are generally attracted to other adults, but may “regress” to focusing on children when confronted with stressful situations. Groth found, as Herek notes, that the majority of regressed offenders were heterosexual in their adult relationships.
The Child Molestation Research & Prevention Institute notes that 90% of child molesters target children in their network of family and friends, and the majority are men married to women. Most child molesters, therefore, are not gay people lingering outside schools waiting to snatch children from the playground, as much religious-right rhetoric suggests.
Some anti-gay ideologues cite ACPeds’ opposition to same-sex parenting as if the organization were a legitimate professional body. In fact, the so-called college is a tiny breakaway faction of the similarly named, 60,000-member American Academy of Pediatrics that requires, as a condition of membership, that joiners “hold true to the group’s core beliefs … [including] that the traditional family unit, headed by an opposite-sex couple, poses far fewer risk factors in the adoption and raising of children.” The group’s 2010 publication Facts About Youth was described by the American Academy of Pediatrics as not acknowledging scientific and medical evidence with regard to sexual orientation, sexual identity and health, or effective health education. Francis Collins, director of the National Institutes of Health, was one of several legitimate researchers who said ACPeds misrepresented the institutes’ findings. “It is disturbing to me to see special interest groups distort my scientific observations to make a point against homosexuality,” he wrote. “The information they present is misleading and incorrect.” Another critic of ACPeds is Dr. Gary Remafedi, a researcher at the University of Minnesota who wrote a letter to ACPeds rebuking the organization for misusing his research.
In spite of all this, the anti-LGBT right continues to peddle this harmful and baseless myth, which is probably the leading defamatory charge leveled against gay people.
MYTH # 2
Same-sex parents harm children.
Most hard-line anti-gay organizations are heavily invested, from both a religious and a political standpoint, in promoting the traditional nuclear family as the sole framework for the healthy upbringing of children. They maintain a reflexive belief that same-sex parenting must be harmful to children — although the exact nature of that supposed harm varies widely.
No legitimate research has demonstrated that same-sex couples are any more or any less harmful to children than heterosexual couples.
The American Academy of Child & Adolescent Psychiatry affirmed in 2013 that “[c]urrent research shows that children with gay and lesbian parents do not differ from children with heterosexual parents in their emotional development or in their relationships with peers and adults” and they are “not more likely than children of heterosexual parents to develop emotional or behavioral problems.”
The American Academy of Pediatrics (AAP) in a 2002 policy statement declared: “A growing body of scientific literature demonstrates that children who grow up with one or two gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.” That policy statement wasreaffirmed in 2009 and in 2013, when the AAP stated its support for civil marriage for same-gender couples and full adoption and foster care rights for all parents, regardless of sexual orientation.
The American Psychological Association (APA) noted in 2004 that “same-sex couples are remarkably similar to heterosexual couples, and that parenting effectiveness and the adjustment, development and psychological well-being of children is unrelated to parental sexual orientation.” In addition, the APA stated that “beliefs that lesbian and gay adults are not fit parents have no empirical foundation.” The next year, in 2005, the APA published a summary of research findings on lesbian and gay parents and reiterated that common negative stereotypes about LGBT parenting are not supported by the data.
Similarly, the Child Welfare League of America’s official position with regard to same-sex parents is that “lesbian, gay, and bisexual parents are as well-suited to raise children as their heterosexual counterparts.”
A 2010 review of research on same-sex parenting carried out by LiveScience, a science news website, found no differences between children raised by heterosexual parents and children raised by lesbian parents. In some cases, it found, children in same-sex households may actually be better adjusted than in heterosexual homes.
A 2013 preliminary study in Australia found that the children of lesbian and gay parents are not only thriving, but may actually have better overall health and higher rates of family cohesion than heterosexual families. The study is the world’s largest attempt to compare children of same-sex parents to children of heterosexual parents. The full study was published in June 2014.
The anti-LGBT right continues, however, to use this myth to deny rights to LGBT people, whether through distorting legitimate research or through “studies” conducted by anti-LGBT sympathizers, such as a 2012 paper popularly known as the Regnerus Study. University of Texas sociology professor Mark Regnerus’ paper purported to demonstrate that same-sex parenting harms children. The study received almost $1 million in funding from anti-LGBT think tanks, and even though Regnerus himself admitted that his study does not show what people say it does with regard to the “harms” of same-sex parenting, it continues to be peddled as “proof” that children are in danger in same-sex households. Since the study’s release, it has been completely discredited because of its faulty methodology and its suspect funding. In 2013, Darren Sherkat, a scholar appointed to review the study by the academic journal that published it, told the Southern Poverty Law Center that he “completely dismiss[es]” the study, saying Regnerus “has been disgraced” and that the study was “bad … substandard.” In spring 2014, the University of Texas’s College of Liberal Arts and Department of Sociology publicly distanced themselves from Regnerus, the day after he testified as an “expert witness” against Michigan’s same-sex marriage ban. The judge in that case, Bernard Friedman, found that Regnerus’ testimony was “entirely unbelievable and not worthy of serious consideration,” and ruled that Michigan’s ban on same-sex marriage was unconstitutional. Despite all this, the Regnerus Study is still used in the U.S. and abroad as a tool by anti-LGBT groups to develop anti-LGBT policy and laws.
MYTH # 3
People become homosexual because they were sexually abused as children or there was a deficiency in sex-role modeling by their parents.
Many anti-gay rights activists claim that homosexuality is a mental disorder caused by some psychological trauma or aberration in childhood. This argument is used to counter the common observation that no one, gay or straight, consciously chooses his or her sexual orientation. Joseph Nicolosi, a founder of the National Association for Research and Therapy of Homosexuality, said in 2009 that “if you traumatize a child in a particular way, you will create a homosexual condition.” He also has repeatedly said, “Fathers, if you don’t hug your sons, some other man will.”
A side effect of this argument is the demonization of parents of gay men and lesbians, who are led to wonder if they failed to protect a child against sexual abuse or failed as role models in some important way. In October 2010, Kansas State University family studies professor Walter Schumm released a related study in the British Journal of Biosocial Science, which used to be the Eugenics Review. Schumm argued that gay couples are more likely than heterosexuals to raise gay or lesbian children through modeling “gay behavior.” Schumm, who has also argued that lesbian relationships are unstable, has ties to discredited psychologist and anti-LGBT fabulist Paul Cameron, the author of numerous completely baseless “studies” about the alleged evils of homosexuality. Critics of Schumm’s study note that he appears to have merely aggregated anecdotal data, resulting in a biased sample.
No scientifically sound study has definitively linked sexual orientation or identity with parental role-modeling or childhood sexual abuse.
The American Psychiatric Association noted in a 2000 fact sheet available on the Association of Gay and Lesbian Psychiatrists, that dealing with gay, lesbian and bisexual issues, that sexual abuse does not appear to be any more prevalent among children who grow up and identify as gay, lesbian or bisexual than in children who grow up and identify as heterosexual.
Similarly, the National Organization on Male Sexual Victimization notes on its websitethat “experts in the human sexuality field do not believe that premature sexual experiences play a significant role in late adolescent or adult sexual orientation” and added that it’s unlikely that anyone can make another person gay or heterosexual.
Advocates for Youth, an organization that works in the U.S. and abroad in the field of adolescent reproductive and sexual health also has stated that sexual abuse does not “cause” heterosexual youth to become gay.
In 2009, Dr. Warren Throckmorton, a psychologist at the Christian Grove City College,noted in an analysis that “the research on sexual abuse among GLBT populations is often misused to make inferences about causation [of homosexuality].”
MYTH # 4
LGBT people don’t live nearly as long as heterosexuals.
Anti-LGBT organizations, seeking to promote heterosexuality as the healthier “choice,” often offer up the purportedly shorter life spans and poorer physical and mental health of gays and lesbians as reasons why they shouldn’t be allowed to adopt or foster children.
This falsehood can be traced directly to the discredited research of Paul Cameron and his Family Research Institute, specifically a 1994 paper he co-wrote entitled “The Lifespan of Homosexuals.” Using obituaries collected from newspapers serving the gay community, he and his two co-authors concluded that gay men died, on average, at 43, compared to an average life expectancy at the time of around 73 for all U.S. men. On the basis of the same obituaries, Cameron also claimed that gay men are 18 times more likely to die in car accidents than heterosexuals, 22 times more likely to die of heart attacks than whites, and 11 times more likely than blacks to die of the same cause. He also concluded that lesbians are 487 times more likely to die of murder, suicide, or accidents than straight women.
Remarkably, these claims have become staples of the anti-gay right and have frequently made their way into far more mainstream venues. For example, William Bennett, education secretary under President Reagan, used Cameron’s statistics in a 1997 interview he gave to ABC News’ “This Week.”
However, like virtually all of his “research,” Cameron’s methodology is egregiously flawed — most obviously because the sample he selected (the data from the obits) was not remotely statistically representative of the LGBT population as a whole. Even Nicholas Eberstadt, a demographer at the conservative American Enterprise Institute,has called Cameron’s methods “just ridiculous.”
Anti-LGBT organizations have also tried to support this claim by distorting the work of legitimate scholars, like a 1997 study conducted by a Canadian team of researchers that dealt with gay and bisexual men living in Vancouver in the late 1980s and early 1990s. The authors of the study became aware that their work was being misrepresented by anti-LGBT groups, and issued a response taking the groups to task.
MYTH # 5
Gay men controlled the Nazi Party and helped to orchestrate the Holocaust.
This claim comes directly from a 1995 book titled The Pink Swastika: Homosexuality in the Nazi Party, by Scott Lively and Kevin Abrams. Lively is the virulently anti-gay founder of Abiding Truth Ministries and Abrams is an organizer of a group called the International Committee for Holocaust Truth, which came together in 1994 and included Lively as a member.
The primary argument Lively and Abrams make is that gay people were not victimized by the Holocaust. Rather, Hitler deliberately sought gay men for his inner circle because their “unusual brutality” would help him run the party and mastermind the Holocaust. In fact, “the Nazi party was entirely controlled by militaristic male homosexuals throughout its short history,” the book claims. “While we cannot say that homosexuals caused the Holocaust, we must not ignore their central role in Nazism,” Lively and Abrams add. “To the myth of the ‘pink triangle’ — the notion that all homosexuals in Nazi Germany were persecuted — we must respond with the reality of the ‘pink swastika.'”
These claims have been picked up by a number of anti-gay groups and individuals, including Bryan Fischer of the American Family Association, as proof that gay men and lesbians are violent and sick. The book has also attracted an audience among anti-gay church leaders in Eastern Europe and among Russian-speaking anti-gay activists in America.
The Pink Swastika has been roundly discredited by legitimate historians and other scholars. Christine Mueller, professor of history at Reed College, did a 1994 line-by-linerefutation of an earlier Abrams article on the topic and of the broader claim that the Nazi Party was “entirely controlled” by gay men. Historian Jon David Wynecken at Grove City College also refuted the book, pointing out that Lively and Abrams did no primary research of their own, instead using out-of-context citations of some legitimate sources while ignoring information from those same sources that ran counter to their thesis.
The myth that the Nazis condoned homosexuality sprang up in the 1930s, started by socialist opponents of the Nazis as a slander against Nazi leaders. Credible historians believe that only one of the half-dozen leaders in Hitler’s inner circle, Ernst Röhm, was gay. (Röhm was murdered on Hitler’s orders in 1934.) The Nazis considered homosexuality one aspect of the “degeneracy” they were trying to eradicate.
When Hitler’s National Socialist German Workers Party came to power in 1933, it quickly strengthened Germany’s existing penalties against homosexuality. Heinrich Himmler, Hitler’s security chief, announced that homosexuality was to be “eliminated” in Germany, along with miscegenation among the races. Historians estimate that between 50,000 and 100,000 men were arrested for homosexuality (or suspicion of it) under the Nazi regime. These men were routinely sent to concentration camps and many thousands died there.
Himmler expressed his views on homosexuality like this: “We must exterminate these people root and branch. … We can’t permit such danger to the country; the homosexual must be completely eliminated.”
MYTH # 6
Hate crime laws will lead to the jailing of pastors who criticize homosexuality and the legalization of practices like bestiality and necrophilia.
Anti-gay activists, who have long opposed adding LGBT people to those protected by hate crime legislation, have repeatedly claimed that such laws would lead to the jailing of religious figures who preach against homosexuality — part of a bid to gain the backing of the broader religious community for their position. Janet Porter of Faith2Action, for example, was one of many who asserted that the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act — signed into law by President Obama in October 2009 — would “jail pastors” because it “criminalizes speech against the homosexual agenda.”
In a related assertion, anti-gay activists claimed the law would lead to the legalization of psychosexual disorders (paraphilias) like bestiality and pedophilia. Bob Unruh, a conservative Christian journalist who left The Associated Press in 2006 for the right-wing, conspiracist news site WorldNetDaily, said shortly before the federal law was passed that it would legalize “all 547 forms of sexual deviancy or ‘paraphilias’ listed by the American Psychiatric Association.” This claim was repeated by many anti-gay organizations, including the Illinois Family Institute.
The claim that hate crime laws could result in the imprisonment of those who “oppose the homosexual lifestyle” is false. The First Amendment provides robust protections of free speech, and case law makes it clear that even a preacher who publicly suggested that gays and lesbians should be killed would be protected.
Neither do hate crime laws — which provide for enhanced penalties when persons are victimized because of their “sexual orientation” (among other factors) — “protect pedophiles,” as Janet Porter and many others have claimed. According to the American Psychological Association, sexual orientation refers to heterosexuality, homosexuality and bisexuality — not paraphilias such as pedophilia. Paraphilias, as defined (pdf; may require a different browser) by the American Psychiatric Association, are characterized by sexual urges or behaviors directed at non-consenting persons or those unable to consent like children, or that involve another person’s psychological distress, injury, or death.
Moreover, even if pedophiles, for example, were protected under a hate crime law — and such a law has not been suggested or contemplated anywhere — that would not legalize or “protect” pedophilia. Pedophilia is illegal sexual activity, and a law that more severely punished people who attacked pedophiles would not change that.
MYTH # 7
Allowing gay people to serve openly will damage the armed forces.
Anti-gay groups have been adamantly opposed to allowing gay men and lesbians to serve openly in the armed forces, not only because of their purported fear that combat readiness will be undermined, but because the military has long been considered the purest meritocracy in America (the armed forces were successfully racially integrated long before American civil society, for example). If gays serve honorably and effectively in this meritocracy, that suggests that there is no rational basis for discriminating against them in any way.
Gays and lesbians have long served in the U.S. armed forces, though under the “Don’t Ask, Don’t Tell” (DADT) policy that governed the military between 1993 and 2011, they could not do so openly. At the same time, gays and lesbians have served openly for years in the armed forces of 25 countries (as of 2010), including Britain, Israel, South Africa, Canada and Australia, according to a report released by the Palm Center, a policy think tank at the University of California at Santa Barbara. The Palm Center report concluded that lifting bans against openly gay service personnel in these countries “ha[s] had no negative impact on morale, recruitment, retention, readiness or overall combat effectiveness.” Successful transitions to new policies were attributed to clear signals of leadership support and a focus on a uniform code of behavior without regard to sexual orientation.
A 2008 Military Times poll of active-duty military personnel, often cited by anti-gay activists, found that 10% of respondents said they would consider leaving the military if the DADT policy were repealed. That would have meant that some 228,000 people might have left the military the policy’s 2011 repeal. But a 2009 review of that poll by the Palm Center suggested a wide disparity between what soldiers said they would do and their actual actions. It noted, for example, that far more than 10% of West Point officers in the 1970s said they would leave the service if women were admitted to the academy. “But when the integration became a reality,” the report said, “there was no mass exodus; the opinions turned out to be just opinions.” Similarly, a 1985 survey of 6,500 male Canadian service members and a 1996 survey of 13,500 British service members each revealed that nearly two-thirds expressed strong reservations about serving with gays. Yet when those countries lifted bans on gays serving openly, virtually no one left the service for that reason. “None of the dire predictions of doom came true,” the Palm Center report said.
Despite the fact that gay men and lesbians have been serving openly in the military since September 2011, anti-LGBT groups continue to claim that openly gay personnel are causing problems in the military, including claims of sexual abuse by gay and lesbian soldiers of straight soldiers. The Palm Center refutes this claim, and in an analysis, found that repealing DADT has had “no overall negative impact on military readiness or its component dimensions,” including sexual assault. According to then-Secretary of Defense Leon Panetta in 2012, the repeal of DADT was being implemented effectively and was having no impact on readiness, unit cohesion or morale. Panetta also issued an LGBT Pride message in 2012.
MYTH # 8
Gay people are more prone to be mentally ill and to abuse drugs and alcohol.
Anti-LGBT groups want not only to depict sexual orientation as something that can be changed but also to show that heterosexuality is the most desirable “choice,” even if religious arguments are set aside. The most frequently used secular argument made by anti-LGBT groups in that regard is that homosexuality is inherently unhealthy, both mentally and physically. As a result, most anti-LGBT rights groups reject the 1973 decision by the American Psychiatric Association (APA) to remove homosexuality from its list of mental illnesses. Some of these groups, including the particularly hard-lineTraditional Values Coalition, claim that “homosexual activists” managed to infiltrate the APA in order to sway its decision.
All major professional mental health organizations are on record as stating that homosexuality is not a mental disorder.
The American Psychological Association states that being gay is just as healthy as being straight, and noted that the 1950s-era work of Dr. Evelyn Hooker started to dismantle this myth. In 1975, the association issued a statement that said, in part, “homosexuality per se implies no impairment in judgment, reliability or general social and vocational capabilities.” The association has clearly stated in the past that “homosexuality is neither mental illness nor mental depravity. … Study after study documents the mental health of gay men and lesbians. Studies of judgment, stability, reliability, and social and vocational adaptiveness all show that gay men and lesbians function every bit as well as heterosexuals.”
The American Psychiatric Association states that (PDF; may not open in all browsers) homosexuality is not a mental disorder and that all major professional health organizations are on record as confirming that. The organization removed homosexuality from its official diagnostic manual in 1973 after extensive review of the scientific literature and consultation with experts, who concluded that homosexuality is not a mental illness.
Though it is true that LGBT people tend to suffer higher rates of anxiety, depression, and depression-related illnesses and behaviors like alcohol and drug abuse than the general population, that is due to the historical social stigmatization of homosexuality and violence directed at LGBT people, not because of homosexuality itself. Studies done during the past several years have determined that it is the stress of being a member of a minority group in an often-hostile society — and not LGBT identity itself — that accounts for the higher levels of mental illness and drug use.
Richard J. Wolitski, an expert on minority status and public health issues at the Centers for Disease Control and Prevention, put it like this in 2008: “Economic disadvantage, stigma, and discrimination … increase stress and diminish the ability of individuals [in minority groups] to cope with stress, which in turn contribute to poor physical and mental health.”
Even as early as 1994, external stressors were recognized as a potential cause of emotional distress of LGBT people. A report presented by the Council on Scientific Affairs to the AMA House of Delegates Interim Meeting with regard to reparative (“ex-gay”) therapy noted that most of the emotional disturbance gay men and lesbians experience around their sexual identity is not based on physiological causes, but rather on “a sense of alienation in an unaccepting environment.”
In 2014, a study, conducted by several researchers at major universities and the Rand Corporation, found that LGBT people living in highly anti-LGBT communities and circumstances face serious health concerns and even premature death because of social stigmatization and exclusion. One of the researchers, Dr. Mark Hatzenbuehler, a sociomedical sciences professor at the Mailman School of Public Health at Columbia University, said that the data gathered in the study suggests that “sexual minorities living in communities with high levels of anti-gay prejudice have increased risk of mortality, compared to low-prejudice communities.”
Homosexuality is not a mental illness or emotional problem and being LGBT does not cause someone to be mentally ill, contrary to what anti-LGBT organizations say. Rather,social stigmatization and prejudice appear to contribute to health disparities in the LGBT population, which include emotional and psychological distress and harmful coping mechanisms.
MYTH # 9
No one is born gay.
Anti-gay activists keenly oppose the granting of “special” civil rights protections to gay people similar to those afforded black Americans and other minorities. But if people are born gay — in the same way that people have no choice as to whether they are black or white — discrimination against gay men and lesbians would be vastly more difficult to justify. Thus, anti-gay forces insist that sexual orientation is a behavior that can be changed, not an immutable characteristic.
Modern science cannot state conclusively what causes sexual orientation, but a great many studies suggest that it is the result of both biological and environmental forces, not a personal “choice.” A 2008 Swedish study of twins (the world’s largest twin study) published in The Archives of Sexual Behavior concluded that “[h]omosexual behaviour is largely shaped by genetics and random environmental factors.” Dr. Qazi Rahman, study co-author and a leading scientist on human sexual orientation, said: “This study puts cold water on any concerns that we are looking for a single ‘gay gene’ or a single environmental variable which could be used to ‘select out’ homosexuality — the factors which influence sexual orientation are complex. And we are not simply talking about homosexuality here — heterosexual behaviour is also influenced by a mixture of genetic and environmental factors.” In other words, sexual orientation in general — whether homosexual, bisexual or heterosexual — is a mixture of genetic and environmental factors.
The American Psychological Association (APA) states that sexual orientation “ranges along a continuum,” and acknowledges that despite much research into the possible genetic, hormonal, social and cultural influences on sexual orientation, scientists have yet to pinpoint the precise causes of sexual orientation. Regardless, the APA concludes that “most people experience little or no sense of choice about their sexual orientation.” In 1994, the APA noted that “homosexuality is not a matter of individual choice” and that research “suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth.”
The American Academy of Pediatrics stated in 1993 (updated in 2004) that “homosexuality has existed in most societies for as long as recorded descriptions of sexual beliefs and practices have been available” and that even at that time, “most scholars in the field state that one’s sexual orientation is not a choice … individuals do not choose to be homosexual or heterosexual.”
There are questions about what specifically causes sexual orientation in general, but most current science acknowledges that it is a complex mixture of biological, environmental, and possibly hormonal factors but that no one chooses an orientation.
MYTH # 10
Gay people can choose to leave homosexuality.
If people are not born gay, as anti-gay activists claim, then it should be possible for individuals to abandon homosexuality. This view is buttressed among religiously motivated anti-gay activists by the idea that homosexual practice is a sin and humans have the free will needed to reject sinful urges.
A number of “ex-gay” religious ministries have sprung up in recent years with the aim of teaching gay people to become heterosexuals, and these have become prime purveyors of the claim that gays and lesbians, with the aid of mental therapy and Christian teachings, can “come out of homosexuality.” The now defunct Exodus International, the largest of these ministries, once stated, “You don’t have to be gay!” Meanwhile, in a more secular vein, the National Association for Research and Therapy of Homosexuality describes itself as “a professional, scientific organization that offers hope to those who struggle with unwanted homosexuality.”
“Reparative” or sexual reorientation therapy — the pseudo-scientific foundation of the ex-gay movement — has been rejected by all the established and reputable American medical, psychological, psychiatric and professional counseling organizations. In 2009, for instance, the American Psychological Association adopted a resolution, accompanied by a 138-page report, that repudiated ex-gay therapy. The report concluded that compelling evidence suggested that cases of individuals going from gay to straight were “rare” and that “many individuals continued to experience same-sex sexual attractions” after reparative therapy. The APA resolution added that “there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and asked “mental health professionals to avoid misrepresenting the efficacy of sexual orientation change efforts by promoting or promising change in sexual orientation.” The resolution also affirmed that same-sex sexual and romantic feelings are normal.
A very large number of professional medical, scientific and counseling organizations in the U.S. and abroad have issued statements regarding the harm that reparative therapy can cause, particularly if it’s based on the assumption that homosexuality is unacceptable. As early as 1993, the American Academy of Pediatrics stated that“[t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving change in orientation.”
The American Medical Association officially opposes reparative therapy that is “based on the assumption that homosexuality per se is a mental disorder or based on an a priori assumption that the person should change his/her homosexual orientation.”
The Pan-American Health Organization, the world’s oldest international public health agency, issued a statement in 2012 that said, in part: “Services that purport to ‘cure’ people with non-heterosexual sexual orientation lack medical justification and represent a serious threat to the health and well-being of affected people.” The statement continues, “In none of its individual manifestations does homosexuality constitute a disorder or an illness, and therefore it requires no cure.”
Some of the most striking, if anecdotal, evidence of the ineffectiveness of sexual reorientation therapy has been the numerous failures of some of its most ardent advocates. For example, the founder of Exodus International, Michael Bussee, left the organization in 1979 with a fellow male ex-gay counselor because the two had fallen in love. Other examples include George Rekers, a former board member of NARTH and formerly a leading scholar of the anti-LGBT Christian right who was revealed to have been involved in a same-sex tryst in 2010. John Paulk, former poster child of the massive ex-gay campaign “Love Won Out” in the late 1990s, is now living as a happy gay man. And Robert Spitzer, a preeminent psychiatrist whose 2001 research that seemed to indicate that some gay people had changed their orientation, repudiated his own studyin 2012. The Spitzer study had been widely used by anti-LGBT organizations as “proof” that sexual orientation can change.
In 2013, Exodus International, formerly one of the largest ex-gay ministries in the world, shut down after its director, Alan Chambers, issued an apology to the LGBT community. Chambers, who is married to a woman, has acknowledged that his same-sex attraction has not changed. At a 2012 conference, he said: “The majority of people that I have met, and I would say the majority meaning 99.9% of them, have not experienced a change in their orientation or have gotten to a place where they could say they could never be tempted or are not tempted in some way or experience some level of same-sex attraction.”
GayNor – “ Is in favour of homosexuality being made illegal in Australia and should have Russian styled laws that make it illegal to show or speak about homosexuality in public”
Australia’s newest political party, Australian Liberty Alliance, was launched today in Perth. The party has named their first three candidates for the Australian federal senate.
The launch of the party saw vocal protesters attending it’s media announcement which was held outside the Western Australian state parliament. The right wing party invited controversial Dutch politician Geert Wilders to visit Australia for their first events.
Wilders, a politician from The Netherlands is a opponent of Islam and campaigns against allowing Muslim people to immigrate and argues that new Mosques should be banned.
The party’s first candidates are anti-halal certification campaigner Kirralie Smith, President of the Q-Society Debbie Robinson and conservative commentator Bernard Gaynor. Smith plans to run in NSW, while Gaynor hails from Queensland, Robinson will run for the senate in Western Australia.
Gaynor, a former Army officer, had his commission terminated by the Army for his outspoken views on Islam and the LGBTIQ community. Gaynor previously ran for public office as a representative of the Katter Party but was asked to resign after he said that parents had a right to know if their teachers were gay. Later Gaynor served as the state secretary of Family First in Queensland.
The Australian Liberty Alliance has published it’s policies in relation to LGBTIQ+ people. The political party said they respect that some Australians choose to live in same sex relationship and that they would combat negative stereotyping and mitigate financial disadvantages for homosexual couples where they still exist.
The party is opposed to marriage equality, stating that they support natural families. On their website the group states the right of children to grow up in a natural family must remain protected and “alternative sexual orientations” shall not be actively promoted in schools and public institutions.
When OUTinPerth interviewed Bernard Gaynor in 2014 he told us that he does not recognise transgender people and for him the term ‘homosexual’ applies to all people who are not heterosexual.
Gaynor said he was in favour of homosexuality being made illegal and that Australia should have Russian styled laws that make it illegal to show or speak about homosexuality in public.
Published by Out In Perth
20 November 2015
BOB Katter’s party has cancelled Bernard Gaynor’s bid for preselection on the Senate ticket after he said he did not want his children taught by gay teachers.
He’s back, but not for long as he got booted off a live radio program today with his usual rants against gays, jews, muslims etc….
McKee is a sick individual who suffers from a form of Autism, and should spend his time with professional help rather than ranting over the net with the same old garbage.
in Local News
Grieving man Ben Jago says has partner’s sudden death left him bereft and without rights after the authorities did not recognise him as next of kin.
Ben Jago’s partner Nathan ended his own life after struggling with mental illness – but despite their rights as de facto partners, Ben was not allowed to have any say in Nathan’s funeral, during which their relationship was not even recognised or mentioned.
“When I found his body I was distraught, disoriented and overwhelmed – what followed made the situation worse than I could possibly have imagined,” Ben told the Launceston Examiner.
He says he was treated like his relationship meant nothing. “Nathan was my soul mate and I feel I had a connection with him I will never have with anyone else again,” he explained.
“Several hours after his death I was interviewed by the police, who told me his mother would be recognised as next-of-kin instead of me, and that she would be given custody of his body.”
Ben was not informed of the details of the Nathan’s funeral. He was excluded from funeral planning, and was unable to honour his partner’s wishes to be cremated in Hobart.
“I contacted the Coroner’s Office and was told I could only be considered next-of-kin if I went to the office of Births, Deaths and Marriages and registered our relationship. When I contacted that office I was told both parties had to agree to registering the union which was now impossible.
“I didn’t know it then, but under Tasmanian law I was deemed to be Nathan’s significant partner and next-of-kin, even without registering our relationship,” Ben explains.
“It is not enough to be deemed a ‘significant’, ‘de facto’ or ‘registered’ partner when this can be ignored by people in authority.”
The couple had planned to get married in New Zealand at some point, having been engaged for over a year.
Ben has now lodged a case with the Tasmanian Anti-Discrimination Commission against the Tasmanian Coroner’s Office and the Tasmania Police for disregarding his legal rights as a same-sex partner.
Ben’s story shows how the recognition of same-sex partners as de facto partners is not enough to ensure same-sex partners will be treated equality and fairly if the worst case scenario happens, says LGBTI equality campaigner Rodney Croome.
“It is still too easy for officials to treat us as if we have no spousal rights at all,” he explains.
“As long as the Marriage Act says same-sex relationships don’t matter, the existing legal rights of same-sex couples will be easier to disregard.”
Affected by the issues in this story and need to talk? Call Lifeline on 13 11 14, or QLife on 1800 184 527.
A transgender military officer who has been named the Queensland Australian of the Year for 2016 says the award shows the huge shift in society’s attitude to diversity.
Civil and Administrative Tribunal
New South Wales
- Medium Neutral Citation:
- Sunol v Burns  NSWCATAP 207
- Hearing dates:
- 4 September 2015
- Date of orders:
- 24 September 2015
- Decision date:
- 24 September 2015
- Appeal Panel
- The Hon D Cowdroy OAM QC, Principal Member
Dr J Renwick SC, Senior Member
- Appeal dismissed.
- CIVIL AND ADMINISTRATIVE TRIBUNAL – Anti-Discrimination – Homosexual vilification – Public Act – Incitement – Remedies – Restraining Order – Appeal Dismissed
- Legislation Cited:
- Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
- Cases Cited:
- Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Attorney-General v 2UE Sydney Pty Ltd and Burns  NSWCA 349
Attorney-General v Long Eaton Urban Council  1 Ch 124 C.A
Attorney-General v Nottingham Corporation  1 Ch 673
Burns v Sunol  NSWCATAD 131
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Hanson v Radcliffe UDC  2 Ch 490
Leeds Industrial Co-operative Society Ltd v Slack  AC 851
Sunol v Collier  NSWCA 14
Sunol v Collier (No 2)  NSWCA 44
- Texts Cited:
- Principal judgment
- John Christopher Sunol (Appellant)
Gary Burns (Respondent)
- Robert Balzola, solicitor, by leave for the Appellant.
Gary Burns (Respondent in person)
- File Number(s):
- AP 15/42897
- Publication restriction:
- Decision under appeal
REASONS FOR DECISION
- The appellant appeals the decision of the New South Wales Civil and Administrative Tribunal (“the Tribunal”), which was delivered on 25 June 2015: seeBurns v Sunol  NSWCATAD 131. By that decision, a restraining order was made under s 108(2) of the Anti-Discrimination Act 1977 (NSW) (“the Act”) (“the restraining order”) which prohibits the appellant from publishing certain material. For the reasons which follow, the appeal is dismissed.
- The orders of the Tribunal identified the material (“the offending material”) which the appellant published on a website as set out below, which material was found to have contravened the provisions of s 49ZT of the Act.
- The Tribunal identified and defined the offending material as follows:
(a) Garry **** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil.
I have work to do to help you protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker.
I will not be raped to death in jail while he watches as he says in his threats to me.
(b) Rape little boys, this is same sex marriage.
If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage.
This is the end results of same sex marriage.
Sit back and enjoy yourself whilst this goes on.
(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.
(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.
(e) Everybody with common sense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.
(f) Gay marriage is child abuse.
- Such publications were made on 23 March 2014 on the appellant’s internet blog. Further publication of material was made twice on 21 March 2014.
- On 24 March 2014 the respondent lodged three complaints with the President of the Anti-Discrimination Board and these were accepted under s 89B of the Act. On 14 May 2014, the President wrote to the appellant seeking his response to those complaints.
- The appellant failed to respond. Accordingly, the complaints were referred by the President to the Tribunal under s 93C of the Act on 21 July 2014.
- At the commencement of the appeal, Senior Member Renwick, as a member of the Appeal Panel brought to the parties’ attention that he had appeared for the Attorney-General:
- who was the intervener in a matter involving the Appellant, namely Sunol v Collier  NSWCA 14; see also Sunol v Collier (No 2) NSWCA 44; and
- who was the moving party in a matter involving the respondent, namely Attorney-General v 2UE Sydney Pty Ltd and Burns  NSWCA 349.
- Each case involved constitutional or jurisdictional questions.
- The Appeal Panel records that the Appellant and the Respondent, having been apprised of Senior Member Renwick’s involvement in the above cases, consented to this appeal proceeding with the Appeal Panel as currently constituted.
- Section 49ZT of the Act relevantly provides:
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
- The Tribunal, having considered the complaints and having found that breaches of s 49ZT of the Act had occurred, noted that the respondent sought neither damages nor an apology from the appellant. Rather, the respondent sought to prevent the appellant from continuing to publish statements via the appellant’s website which the respondent claimed were harmful to homosexual men and women. The appellant made no submissions to the Tribunal concerning any such order.
- The Tribunal, having identified the offending material in the first paragraph of its order, then ordered the appellant be restrained from publishing the same or similar material (“the restraining orders”). Such order provides:
(2) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
Notice of Appeal
- The grounds of appeal upon which the Appellant brings the appeal are as follows:
1. The Tribunal below misconstrued the law, specifically s 49ZS of the Anti-Discrimination Act.
2. The Tribunal failed to apply the test of ‘Public Act’ within the meaning of s 49ZS, adequately or at all.
3. The Tribunal took into account irrelevant considerations, in particular the decision to order the Appellant to be responsible for any material on any website, “whether or not controlled by him” [Order 2].
4. The Tribunal failed to take into account relevant considerations, to wit the fact that the Appellant does not pass any or all of the statutory or common law tests to be applied when considering the question of what is a “Public Act” within the meaning of s 49ZS.
5. The Tribunal failed to apply the model litigant principles and other rules of Procedural Fairness in that the Respondent was entirely unrepresented throughout the proceedings and furthermore, the Tribunal made no attempt to afford procedural fairness to him.
6. That a breach of the rules of natural justice occurred in connection with the making of the decision: In that it was not put to the Respondent whether he could control materials that are not capable of being controlled or upon which he is responsible.
7. That procedures that were required by law to be observed in connection with the making of the decision were not observed: That section 49ZS and each element was not applied, to wit, specifically at Paragraph 41 of the said Judgment where only subsection 49ZS(a) is applied but not 49ZS(c) upon which the decision is silent and not considered.
8. That upon Ground , the decision was Manifestly Unreasonable against the statutory construction of the Act such that no reasonable Tribunal member could make the decision that it did.
9. That the person who purported to make the decision did not have jurisdiction to make the decision: That the decision to make Orders against a person upon which there is acknowledged even within the body of the Order a prohibition against the Respondent to refrain from publishing material whether or not controlled by him is incompetent and fails the test of reason against the statutory purpose of the Act. It is ultra vires for the Tribunal Below to make a decision that effectively prohibits a person from publishing text of another in circumstances where that publication is no more than a link and upon which the other side of the link is a website of which the Appellant has no control whatsoever.
10. That the decision was not authorised by the enactment in pursuance of which it was purported to be made: The Decision maker being the Tribunal Below has usurped for itself a power to make Orders of the kind in Order 2 which it does not have the authority to make and is thereby ultra vires.
11. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made: That Order 2 extends beyond the exercise of this Tribunal’s power in encumbering a Respondent to comply with an Order that is subject to doctrines of frustration and impossibility. Specifically, the Respondent can never know whether he is breaching the Rule for lack of certainty, because he cannot know at any moment of time the content of a website not controlled by him.
12. That the decision involved an error of law, whether or not the error appears on the record of the decision: The Decision in Order 2 specifically, involves an error of law in the misapplication of section 49ZS of the ADA.
13. That there was no evidence or other material to justify the making of the decision: There is no evidence of the existence of the link but for untested submissions going to purported link between the Respondent and ultimate linked materials. Further, this material was not supported by any forensic examination on behalf of the referring person the President of the ADB.
14. It is common to see the matters being referred by the ADB but they are not joined as a party for the purpose of cross-examination on questions of what investigations, if any, they conducted in reaching the decision to refer this and other matters to the Tribunal for consideration. This is a serious denial of procedural fairness and natural justice in failing to afford the Respondent any capacity to question the referring power and the factual and legal basis upon which the referral is made.
15. That the decision was otherwise contrary to law: in failing to apply property or at all the provisions of the ADA specifically those provisions in s 49ZS and 49ZT of the Act.
- The submissions have refined the specific matters to be relied upon and the written arguments identified the particular matters to be considered. We consider below only those grounds presented at the hearing of the appeal.
Uncertainty of restraining Order (Order 2)
- The appellant contends that the use of the word “publishing” in Order 2 is intended to have an effect in the future and may not be confined to the reference to “material” which was defined in Order 1. The appellant submits that he would be “left floundering as to whether any other publication, now or in the future, will render him in contempt of Order 2 if Order 1 is not the limit of Order 2”. That is, the appellant submits that there is no capacity for him to know what “material” within Order 2 can mean, other than by reference to Order 1. Secondly, it is submitted that the phrase in Order 2: “same or similar effect”, “expressly provides that there is a category of materials over and above the stipulated material found in Order 1 which is in addition to and not expressly provided for in Order 1”.
- The appellant claims that the wording of Order 2 is “beyond the capacity of any fair minded lay person to identify with any accuracy or precision what conduct on his part trigger [sic] a contempt of Order 2 by virtue of the fact that the material does not exist or that the Tribunal is being speculative and prospective in the making of these orders against which the Respondent [sic Appellant] has no case to answer”. Accordingly he submits that it is “beyond a fair minded reasonable person to know what materials of ‘similar effect’ can mean” and that the term is so vague as to “reduce the Order to impotence”.
- The issues raised by the appellant give rise to a consideration of power of the Tribunal to make an order of a kind that is now in question.
- In a matter such as this, jurisdiction is invested in the Tribunal to exercise any power given to it either by the Act or the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (“NCAT Act”) (see s 29). Section 108 of the Act relevantly provides:
(1) 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.”
(2) If the Tribunal finds the complaints substantiated in whole or in part, it may do any one or more of the following:
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, ….
- Section 58 of the NCAT Act provides:
A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.
- Accordingly a broad power is invested in the Tribunal to make orders in the nature of a restraining order, which may be subject to conditions.
- Once such power has been invested, as with a general declaratory power, the discretion of the Tribunal to fashion an order to suit the circumstances is “almost unlimited”: see Hanson v Radcliffe UDC  2 Ch 490 at 507 per Lord Sterndale MR, making observations in reference to the rules applicable in the High Court of Justice (UK), Order XXV Rule 5, which were cited with approval by Gibbs J inForster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438.
- The Tribunal found that there had been a breach of the Act by the appellant, and further that circumstances justified an order in the nature of a quia timetinjunction in view of the fact that, whilst no future act had yet occurred, there was the apprehension of the possibility that such conduct would be repeated.
- Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack AC 851, where Viscount Finlay said (at 859): “Some particular tort is threatened, nothing has yet been done. The commission can be restrained by injunction”. See also the observations of Lord Sumner at 866-867.
- In the present circumstances, the restraining order is based upon the premise that if there were a repetition of publication of the offending material, it would constitute a violation of the respondent’s legal rights. If there is a strong probability that the apprehended breach could occur in the future, such an injunction will be issued to restrain the infringement of a party’s legal rights: Attorney-Generalv Nottingham Corporation  1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council  1 Ch 124 C.A. at p 127 per Lord Cozens-Hardy MR, who said:
It is as old as the hills that if a man threatens that he intends to do something which is unlawful, and asserts a right to do it, the Court will grant an injunction to restrain him. It is wholly irrelevant to say whether he has done it or not.
- Here, the terms of s 108 of the Act amply support the orders made.
- The terms of any such restraining order must be clear and unambiguous. In this instance, Order 1 defines, with precision and clarity, the statements, words and nature of the words statements which the appellant by Order 2, the appellant is restrained from publishing.
- The restraining order which has been made by the Tribunal is one which the Appeal Panel concludes is one which would be readily understood by the “ordinary reasonable reader”. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, the Court of Appeal said (omitting references), in relation to the reading of an alleged defamatory publication:
The ordinary reasonable reader … is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.
- Whilst the above quotation from Marsden was made with reference to the reader of published material, the Appeal Panel sees no reason not to apply the same observations, by analogy, to the reader of the restraining order. We are satisfied that the terms of the restraining order can be readily understood by a reasonable reader, including the appellant. We see no difficulty in the appellant having a clear understanding of the limits so proscribed by the restraining order.
Extension of Restraining Order (Order (2))
- In respect of the submission that the appellant is incapable of discerning what material lies outside the scope of order 1, Order 2 restrains the publication of “the material” as defined, “including statements to the same or similar effect”. By this extension, words of homosexual vilification which might not be identical to the words referred to in Order 1 but which are similar to or having the same effect of those words, are included in the prohibition.
- As the Appeal Panel has already concluded, the subject matters described in Order 1 are quite clear and can be readily understood in plain English. A reading of the words and subject matters referred to in Order 1 make it plain not only to the appellant, but to any other person, not only the exact words, but in addition, the very nature of the material which the appellant is not to publish. Order 1 therefore properly defines and limits the scope of the offending material.
Scope of order
- The appellant also submits the words “on any website” in Order 2 is vague and ambiguous, and he questions whether the order anticipates only current websites at the time the order is made or whether it would extend to prohibiting future websites. He submits that Order 2 is “infected with frustration, unenforceability and illegality”, and that the order is too broad to be enforceable.
- Order 2 has the effect of both operating in the present, and in the future. There is no time limit. The order would be ineffective if it were framed as to operate only retrospectively. The order operates prospectively for the very purpose of ensuring that the appellant be restrained from engaging in the same or similar conduct in the future.
- Section 108(2)(b) of the Act specifically authorises the making of an order to restrain future conduct. Whilst the appellant submits that the Tribunal has exceeded its jurisdiction by making orders which are “anticipatory, speculative and conflict with the ordinary operation of the Act”, the Appeal Panel sees no basis for such submission in light of the specific and broad powers invested in the Tribunal by s 108 of the Act which specifically mandates the making of an order of the kind referred to in Order 2.
- Accordingly, the Appeal Panel rejects the submission that the Tribunal “has no power to make prospective, pre-emptive orders in anticipation of future events that have not yet come into actuality and upon which the Tribunal has no evidence or factual matrix upon which to make such orders”.
- Order 2 is comprehensive in its effect. Whilst the order may restrict the conduct of the appellant, that is a necessary consequence of the unlawful conduct which has been found against him.
- Next, the appellant objects to the words contained in Order 2, namely “whether or not controlled by him”. The appellant submits that the material would not be under his effective control, if it is on a website not controlled by him.
- It does not assist the appellant to concentrate on words “on any website” in isolation of other words contained in the restraining order. The prohibition upon the appellant is directed to him and restrains him from publishing “the material [i.e. the offending material] … on any website whether or not controlled by him”.
- The restraint is directed to prohibition of statements of homosexual vilification authored by the appellant of the same, or same nature, as defined in Order 1. The restraining order prohibits the appellant from publishing the offending material. If others should do so, they expose themselves to the possibility of being charged with aiding and abetting a breach of the Tribunal’s restraining order. Without such restraint, any order which the Tribunal might make would be rendered nugatory.
- In the decision appealed from, the Tribunal said, in terms which we adopt, and which further dispose of this ground, the following:
92 In Sunol v Collier (EOD)  NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials “Including statements to the same or similar effect, on any website whether or not controlled by him”. In so doing, the Appeal Panel said at  ‘We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes republishing the statements that the Tribunal has found to be unlawful. Courts and Tribunals have also made orders pursuant to comparable legislation enjoining a respondent from publishing or republishing material ‘to the same or similar effect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc  VCAT 1159 and Jones v Toben  FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be difficult for Mr Sunol to predict which statements will be in breach of the AD Act, he has been given a great deal of guidance on this issue by the Tribunal. We agree with Mr Collier that the order should cover the publication of material to the same or similar effect as the material that the Tribunal has found to be unlawful.”
93 On the question of whether Mr Sunol should be prevented from publishing such statements on other websites, the Appeal Panel in Sunol v Collier (EOD)  said at :
“We also agree that Mr Sunol should be prevented from publishing such statements on any websites, whether or not they are controlled by him. If he is able to post statements on websites not controlled by him, then those public acts should be covered by the Tribunal’s order. For those reasons, the following order should be substituted for Order 2:
Mr Sunol is to refrain from publishing the material referred to in the previous order including statements to the same or similar effect, on any website whether or not controlled by him.”
94 In a similar situation in Burns v Sunol  the Tribunal proposed an injunctive order. If an order were to be made that Mr Sunol restrain himself from further publications the conduct restrained would have to be limited to “conduct rendered unlawful by Act or the regulations”; see s 108(2)(b) of the Anti-Discrimination Act, Burns v Sunol  at  and Sunol v Collier (EOD)  at .
95 Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.
Contravention of the Act
- In the written submissions the appellant submitted that there is no contravention under s 49ZS and s 49ZT of the Act. However, no submissions were made either orally or in writing in support of this submission and at the hearing this submission was abandoned. Nevertheless we have considered the carefully reasoned decision of the Tribunal.
- In Sunol v Collier (No 2)  NSWCA 44, the Court of Appeal considered whether statements of a similar kind to those contained in the offending material constituted a breach of s 49ZT of the Act. The Court noted the very wide operation by such section (see decision of Bathurst CJ at ). Further at  Allsop P said:
Certain subject matters are of a character that care needs to be taken in discussion of them in order that forces of anger, violence, alienation and discord are not fostered. Race, religion and sexuality may be seen as examples of such. Racial vilification of the kind with which the Federal Court dealt in Toben v Jones  FCAFC 137; 129 FCR 515 is capable of arousing the most violent and disturbing passions in people. If it were to be carried on for political purposes it would make the effect on people no less drastic. Similar types of vilification can be contemplated directed to other racial groups, other religious groups or groups having different sexual orientations than what might be said to be ‘usual’. A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, is entitled to require civility or reason and good faith in the discussion of certain topics.
- Based upon the foregoing analysis, the Appeal Panel is satisfied that the offending material readily satisfies the prohibition contained in s 49ZT of the Act.
- The appellant suggests that the restraining order was granted “in bad faith” where both the complainant and the Tribunal were aware that the orders sought and made were never capable of being put into effect by virtue of the argument and reasons contained in the submissions relied upon by the appellant. We find that there is no merit in any of the submissions made by the appellant. There is no evidence of any “bad faith” as alleged.
- Accordingly, it follows that the challenges to the Tribunal’s orders do not succeed.
- The Appeal is dismissed.
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.
DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Long time LGBTI liaison officer Senior Sergeant Gai Bolderrow said as LGBTI liaison officers, they aim to encourage safe and inclusive communities and marching in the festival is one way of demonstrating this commitment.
“The Brisbane Pride Festival is a big celebration. We are very excited to be involved and absolutely thrilled to be marching, particularly in uniform,” Senior Sergeant Bolderrow said.
“Marching at this event is two-pronged for the QPS. It shows our support for community members who identify with the LGBTI community. It also shows the QPS’ support for QPS officers and staff members who identify as LGBTI themselves.
“It shows that the QPS provides assistance to all areas of the community, impartially, independently and unaligned.
“Our LGBTI liaison officers are a very committed group. Many have been instrumental in improving services, support and access to police for LGBTI persons.
“Each officer is very dedicated to their role in building relationships and providing police services to the LGBTI community.
“Officers from all over the state are coming to march. We’ve been very busy spreading the word.
“We also have a number of non-LGBTI QPS members marching who are taking the opportunity to show support for their colleagues and for diversity.
“There is a high level of excitement and buzz amongst the service. This event means a lot to us.
“We wouldn’t miss it for the world.”
Commissioner of Police Ian Stewart said he welcomed the request he received by some officers who wanted to march in the Brisbane Pride Festival Parade, wearing official police uniform.
“We have a very diverse police community – we embrace and value that diversity,” Commissioner Stewart said.
“It is very important to support any QPS officers who wishes to participate. This also strengthens the relationship between the QPS and the LGBTI community.”
The LGBTI liaison program began in 1997 to establish and maintain effective liaison between police and LGBTI communities. The program aims to develop appropriate policies and strategies to ensure equitable service across the state. As at June 2015, there were 100 LGBTI liaison officers across the state.
I have recently become aware of a disorder that answers a lot of questions as to Luke McKee’s anti-social behaviour not only for me, but to many others in the community. I’m sure that McKee will deny the following, however, we have documents his father has written discussing his sons condition.
I am writing this so others that have been targeted by McKee, may now understand the actions he takes. This is by no means a “get out of jail” card for McKee. but purely to inform the people that have been continually bombarded by McKee’s disgusting banter.
What Is Asperger Syndrome?
Asperger syndrome is an autism spectrum disorder (ASD) considered to be on the “high functioning” end of the spectrum. Affected children and adults have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors. Motor development may be delayed, leading to clumsiness or uncoordinated motor movements.
Compared with those affected by other forms of ASD, however, those with Asperger syndrome do not have significant delays or difficulties in language or cognitive development. Some even demonstrate precocious vocabulary – often in a highly specialized field of interest.
The following behaviors are often associated with Asperger syndrome. However, they are seldom all present in any one individual and vary widely in degree:
• limited or inappropriate social interactions
• “robotic” or repetitive speech
• challenges with nonverbal communication (gestures, facial expression, etc.) coupled with average to above average verbal skills
• tendency to discuss self rather than others
• inability to understand social/emotional issues or nonliteral phrases
• lack of eye contact or reciprocal conversation
• obsession with specific, often unusual, topics
• one-sided conversations
• awkward movements and/or mannerisms
(Researched from – http://www.autismawareness.com.au/information/diagnosis)
- Qualitative impairment in social interaction, as manifested by at least two of the following:
- marked impairment in the use of multiple nonverbal behaviors such as eye-to eye gaze, facial expression, body postures, and gestures to regulate social interaction
- failure to develop peer relationships appropriate to developmental level
- a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people)
- lack of social or emotional reciprocity
- Restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least one of the following:
- encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity of focus
- apparently inflexible adherence to specific, nonfunctional routines or rituals
- stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)
- persistent preoccupation with parts of objects
- The disturbance causes clinically significant impairment in social, occupational, or other important areas of functioning.
- There is no clinically significant general delay in language (e.g., single words used by age 2 years, communicative phrases used by age 3 years).
- There is no clinically significant delay in cognitive development or in the development of age-appropriate self-help skills, adaptive behavior (other than in social interaction), and curiosity about the environment in childhood.
- Qualitative impairment in social interaction, as manifested by at least two of the following:
With my work, I encounter a fare share of “loose canons:, however for 8 years now, one in particular has an unhealthy obsession with me and my work.
I allege Luke McKee is a “Professional Victim”, and it is interesting to read about the inner working of such a person. I am not going to glorify McKee’s daily grind against the NSW Police, myself, Gays and Jews by writing what he does, you can easily find a lot of his ramblings by searching Google. The focus of this article, is to show the victims of Luke, what I allege is his disorder.
Professional Victim – Narcissistic Personality Disorder
A person with Narcissistic Personality Disorder (NPD) displays patterns of deviant behaviour that can create carnage for those around them (spouse, children, parents, siblings, friends, colleagues, peers, etc). Narcissistic Victim Abuse is abuse that has been caused by someone with this personality disorder. The NPD is not often medically diagnosed, so that the narcissistic individual goes undetected in society (home, work-place, organizations, social settings) and the victim’s plight unrecognised.
A person with NPD has an inflated sense of their own importance, a deep need for attention and admiration, and a strong sense of entitlement. They believe they are superior and have little regard for the feelings of others. As a child, a healthy self-esteem (true self) did not develop in the narcissist so they built up defences to create a ‘false self’ in public. This is akin to wearing a public mask. Wearing the mask is not only emotionally exhausting, it also means that the narcissist is constantly on guard at being found out. They become overly sensitive to narcissistic injury which is any perceived threat (real or imagined) to the narcissist’s self-esteem or self-worth. In order to maintain their illusion and protect their ‘false self’ they seek narcissistic supply from unsuspecting victims.
The narcissist views people as objects which can feed their needs (known as ‘sources of narcissistic supply’). The narcissist will use any tactic, without guilt, empathy or conscience, to make sure they get their narcissistic supply and their needs are met. Narcissistic supply comes from public attention such as fame, celebrity, notoriety, or infamy or private attention such as admiration, flattery, acclaim, fear, or even repulsion. Regular bearers of narcissistic supply include the spouse, children, friends, colleagues, partners and clients. Anything that acts as a status symbol that attracts attention and admiration for the narcissist is narcissistic supply, for example, a flashy car, expensive property, designer clothes, being a member of a church, cult, club, or a business.
With an inflated sense of their own superiority, power and control, the narcissist renders themselves susceptible to all sorts of obsessions, compulsions, and addictions, for example, addiction to: narcissistic supply, grandiosity, control, power, rage, perfectionism, attention, fame etc. The devastating impact of these addictions on their significant others can result in Narcissistic Victim Syndrome. Most victims present with no idea about what has happened to them. Narcissistic abuse is insidious because the abuse is covert, cunning and indirect. Narcissists go to great pains to avoid being observed publicly as being abusive. The Dr Jekyll and Mr Hyde behaviour creates fear, distress, confusion, inner turmoil, and chaos for the victim. The constant ‘walking on eggshells’ and attempting to avoid further conflict can be crippling. To complicate matters a narcissist is rarely medically diagnosed and often goes undetected in society (home, work, organisations, and social settings).
For whatever the reason the victim entered the Dance of the Narcissist (a behaviour known as Co-Dependency) so that in the dance there was both: 1) a pleaser/fixer (victim) and; 2) a taker/controller (narcissist/addict).
Victims present when they feel like they can’t cope. They are unaware that they have been living or working in a war zone. No-one has mentioned Narcissistic Personality Disorder (NPD) or narcissistic abuse to them. Victims of this narcissistic abuse often display a set, or cluster, of symptoms due to this physical, mental, emotional or spiritual abuse. In Narcissistic Victim Syndrome you are looking for a cluster of symptoms to emerge, many are the symptoms of trauma (avoidance behaviour, loss of interest, feeling detached, sense of a limited future, sleeping or eating difficulties, irritability, hyper-vigilance, easily startled, flashbacks, hopelessness, psychosomatic illnesses, self-harming, thoughts of suicide etc). Narcissistic abuse victims express feelings of humiliation and shame, and apt to self-blame. They have learned to take responsibility for the narcissist’s behaviour because they are constantly told the problem is their fault. Some victims develop Stockholm Syndrome and want to support, defend, and love the abuser despite what they have gone through.
Victims tend to ‘dissociate’ or detach from their emotions, body, or surroundings. Living in a war zone where all forms of power and control are used against you (intimidation; emotional, physical and mental abuse; isolation, economic abuse, sexual abuse, coercion, control etc), the threat of abuse is always present. Dissociation is an automatic coping mechanism against overwhelming stress.
Victims are often victimized by more than one person. They often internalize that something is wrong with them, that they deserve this kind of abuse, and then resign themselves to their fate. Victims may not have reached their potential in their personal or professional lives because they always have to stand in the shadow of their aggressor, and not upstage them. They learn to live in the shadows without knowing why.
Victims of narcissistic abuse often appear uncertain of themselves, constantly seeking clarification that they haven’t made a mistake or misheard something. Confidence may be so low that they have trouble making simple decisions. They will not be aware that this is caused by an abusive technique called ‘gaslighting’. Gaslighting is a technique of psychological abuse used by narcissists to instil confusion and anxiety in their victim to the point where they no longer trust their own memory, perception or judgment. With gaslighting, the victim initially notices that something happens that is odd, but they don’t believe it. This moves to defence as the victim fights against the manipulation. Confusion sets in after incessant comments such as: ‘You’re too sensitive’, ‘You’re crazy’, ‘You’re imagining things’ or ‘I never said that.’ Gradually, the victim cannot trust their own perceptions and doubt themselves. This often leads to depression. Broken and unable to trust themselves, they isolate themselves further. The victim now doubts everything about themselves, their thoughts and opinions, their ideas and ideals. They become co-dependent on the abuser for their reality.
Victims need validation and education about what has happened to them. They need information about the medical condition of Narcissistic Personality Disorder and its toxicity in relationships. They need education about how they have contributed to their situation through co-dependence. They need therapy to deal with symptoms. They will need support to remove themselves from their narcissistic relationship, and to not repeat the cycle of abuse in their next relationship. One of their greatest challenges may come from not being believed by significant others, either because these others have not seen the private face of the narcissist or because they themselves are in the narcissist’s thrall.
A ban on Queensland police marching in gay pride events in uniform has been lifted just weeks prior to the Brisbane Pride Festival.
Police commissioner Ian Stewart said when he was asked whether off-duty officers could attend the Brisbane Pride Festival march on September 19 in their Queensland Police Service uniforms, he had no hesitation in agreeing.
“In other states, police regularly are involved in those marches to show support and to show that we are a diverse community ourselves,” he told Fairfax Media.
Anti-Islam Solicitor Robert Balzola loses another encounter in the Tribunal with Anti-Discrimination Campaigner Garry Burns.
- Medium Neutral Citation:
- Corbett v Burns  NSWCATAP 172
- Hearing dates:
- 12 August 2015
- Date of orders:
- 17 August 2015
- Decision date:
- 17 August 2015
- Appeal Panel
- Boland J ADCJ (Deputy President)
- 1. The applicant’s application for an extension of time to appeal the orders of the Administrative Decisions Tribunal made 15 October 2013 (“the orders”) is dismissed.
2. The application for a stay of the orders is dismissed.
- ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW)
- Legislation Cited:
- Anti Discrimination Act 2007 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
- Cases Cited:
- Allesch v Manuz (2000) HCA 40, 203 CLR 172
Comaz (Aust) Pty Ltd v Commissioner of State Revenue  VSC 294
Jackson v NSW Land and Housing Corporation  NSWCATAP22
Metwally v University of Wollongong  HCA 28, 60 ALR 68, 59 ALJR 481
- Texts Cited:
- Australian Civil Procedure 10th ed (Cairns)
Cross on Evidence, Heydon JD
- Procedural and other rulings
- Tess Corbett (aka Therese Maree Corbett) (Applicant)
Garry Burns aka Gary Burns (Respondent)
Robert Balzola and Associates (Applicant)
K & L Gates (Respondent)
- File Number(s):
- AP 15/47082
- Decision under appeal
REASONS FOR DECISION
- These reasons concern interlocutory applications made by Ms Tess Corbett (Ms Corbett) in proceedings brought by Mr Garry Burns (Mr Burns) in the former Administrative Decisions Tribunal in 2013.
- Ms Corbett seeks an order staying four orders made by the Administrative Decisions Tribunal (ADT) on 15 October 2013 pending an application for an extension of time in which to file an application for leave to appeal, and if leave is granted, to appeal the ADT’s decision. The substantive application namely the appeal, and application for leave to appeal, being made out of the time provided in the Civil and Administrative Tribunal Rules 2014 (rule 25), requires, as a threshold requirement, that the Tribunal determine whether it should grant leave to extend time to file the application.
- Normally, an application such as the present application would be considered unremarkable. But the circumstances in which this matter came before me are unusual. This is because Ms Corbett has already agitated an appeal on a question of law against the relevant 2013 orders, and an application for leave to appeal on other grounds.
- The appeal on a question of law, and the application for leave to appeal on other grounds, was heard, as provided in the Civil and Administrative Tribunal Act 2013 (NSW), as an internal appeal by the Tribunal’s appeal panel. That appeal was dismissed, as was the application for leave to appeal on other grounds, on 30 April 2014. Ms Corbett was represented by counsel on the hearing of the appeal.
- Ms Corbett’s solicitor, who appeared for her on this application, submits that his client is entitled to bring another appeal against the 2013 orders on different grounds to those agitated before the appeal panel in 2014.
- In his oral submissions Mr Balzola asserted, because the Tribunal had allocated an appeal file number to the application, and a pro forma letter was forwarded to him by the Registry staff setting out the usual requirements for filing material in an appeal that, by inference, the Tribunal had granted an extension of time in which an application for leave to appeal may be filed. At the hearing I pointed out to Mr Balzola that I did not accept that submission, and afforded him the opportunity to make such submissions as he wished in support of all interlocutory applications before the Tribunal. Mr Balzola was also afforded an opportunity to file submissions in reply to oral submissions made by Mr Rodney who appeared for the respondent, Mr Burns.
- For convenience and ease of understanding, I will in these reasons refer to Ms Corbett as the applicant and Mr Burns as the respondent.
Issues to be determined in this interlocutory application.
- I discern the following issues were raised in the submissions made in interlocutory applications now before the Tribunal:
- Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and/or to seek leave to appeal on other grounds? If an extension of time is granted other issues identified below arise.
- Is it necessary and/or appropriate at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?
- Does the applicant have a “right” to a second appeal in respect of the 2013 orders because she was denied procedural fairness by the Tribunal?
- As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.
- Is the only proper appeal right remaining to the applicant an application for leave to appeal out of time to the Supreme Court of New South Wales or to seek judicial review?
- If the applicant has established she should be granted an extension of time in which to appeal, should the orders made in 2013 be stayed?
- Is the Tribunal itself, in addition to government parties before it, bound by the NSW Model Litigant Policy?
Procedure in the Tribunal and relevant statutory provisions
- If the applicant has a right to bring this application, s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) is relevant. It enables an applicant to bring an application for an extension of time to appeal a primary decision of the Tribunal. Section 41 provides as follows:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
- An application for an extension of time is an interlocutory application as defined in s 6 of the Civil and Administrative Tribunal Act.
- Section 27 of the Civil and Administrative Tribunal Act and the accompanying notes set out the composition of the Tribunal for appeals. Section 27 (1) (d) provides that I may determine this application alone.
- Of significance to this application is s 32 of the Civil and Administrative Tribunal Act. That section sets out the extent of the Tribunal’s internal appeal power. Section 32 (3) (a) precludes the bringing of an internal appeal against any decision of the appeal panel. The section and accompanying notes are instructive:
32 Internal appeal jurisdiction of Tribunal
(1) The Tribunal has “internal appeal jurisdiction” over:
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction:
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) However, the internal appeal jurisdiction of the Tribunal does not extend to:
(a) any decision of an Appeal Panel, or
(b) any decision of the Tribunal in an external appeal, or
(c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or
(d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.
The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. [my emphasis]
- An appeal against a decision of an internal appeal panel lies to the Supreme Court or to the District Court of NSW depending on the constitution of the Tribunal except in respect of contempt, or in respect of a decision of a Registrar (see s 82).
- I observe that the Tribunal’s form for filing an appeal may be described as a “multi-purpose” form. This is best explained by reference to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation  NSWCATAP 22 at . There the President and Deputy President said:
Before noting the grounds of appeal relied upon, it is important to appreciate that although the form is called a Notice of Appeal it does not necessarily mean the party is lodging an appeal as of right. The Tribunal’s Notice of Appeal form allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders or decision appealed from or simply appealing as of right from an internally appealable decision. In addition, the form allows the party to request a hearing in a location other than Sydney and to provide other information, submissions and evidence. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal’s practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multipurpose form has the benefit that a person seeking to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form so that there is greatly reduced scope for procedural confusion and technical mistakes. In addition, an applicant for an extension of time or for leave to appeal does not have to file a draft notice of appeal in addition to their application. In these circumstances and for the sake of simplicity, a party completing a Notice of Appeal form is called an appellant, even if technically that party might more precisely be considered to be merely an applicant for an extension of time in which to appeal or an applicant for leave to appeal.
- The background to this matter is conveniently set out, in part, in the reasons for decision of the Administrative Decision Tribunal on 15 October 2013. That Tribunal noted, in a complaint made to the Anti-Discrimination Board (the Board), the respondent alleged that the applicant had made vilifying statements about homosexuals that were reported on 22 January 2013 on the front page of a Victorian newspaper “the Hamilton Spectator”. The applicant’s statements were noted to have been republished in other newspapers and on the ABC in the next few days.
- By letter dated 23 April 2013 the President of the Board referred the respondent’s complaint to the ADT.
- An interlocutory order was made by the ADT that the respondent notify the Registrar of the applicant’s residential address. Subsequently, various letters, culminating in correspondence advising of a hearing date for the application, were forwarded by the Registrar to the applicant. The letter advising of the hearing date was sent by registered post and a receipt for the letter was in evidence before the ADT. The respondent advised the ADT he too had written to the applicant advising of the hearing date.
- The ADT, having satisfied itself that the applicant had notice of the proceedings, heard the matter in her absence on 3 October 2013.
- On 15 October 2013 the ADT published its reasons for decision and found the complaint of unlawful vilification was substantiated and made orders including an order that the applicant publish within 21 days an apology in the Sydney Morning Herald.
- On 12 November 2013 the applicant lodged an appeal against the ADT’s decision. The appeal was listed in this Tribunal on 30 April 2014 pursuant to the transitional provisions in place on the introduction of the Civil and Administrative Tribunal Act 2013 (NSW). At the appeal hearing the applicant was represented by Mr M White of counsel.
- In its decision dismissing the appeal, the appeal panel noted at  the applicant relied on three grounds of appeal in respect of a question of law. Later, in dealing with the application for leave to appeal, the appeal panel noted that the applicant had sought leave to tender a statement setting out her reasons for non-attendance at the 2013 hearing. But the appeal panel found there was no reason why the matters relied on could not have been presented at the hearing.
- On 7 July 2015 the respondent lodged in the Tribunal a General Application Form in which he seeks an order from the Tribunal that the Tribunal declare the applicant guilty of contempt under s 73(2) of the Civil and Administrative Tribunal Act and pursuant to s 73 (5) the Tribunal refer the matter to the Supreme Court for determination. That application was listed before me for directions on 12 August 2015, and is listed for hearing before the President and myself on 17 August 2015.
- On 31 July 2015 the applicant filed the current application in which she seeks an extension of time to file an internal appeal against the “primary decision in Burns v Corbett [ADT] 131029 made in 2013”.
- In written submissions provided by the applicant at the directions hearing it is asserted that, on 3 August 2015, an application for a stay was filed “seeking orders that the effect of the section 114 Certificate and Decision in the Internal Appeal be determined”. The submission further records on 3 August 2015 that a Notion of Motion was filed in the Supreme Court “to stay the effect of a Judgment Order made 24 August 2014 in matter Burns v Corbett [NSWSC 28109/2014] in the Certificates List”.
- At the interlocutory hearing the applicant was represented by Mr Balzola. The applicant was contacted by telephone and advised that she could participate in and/or listen to the proceedings. However, the applicant requested I terminate the call, on the basis I would ring her again should any relevant issue arise that might require her to give instructions to her solicitor.
- Mr Balzola spoke to and expanded his written submissions which I accepted as an aide memoire. Mr Rodney, solicitor, made oral submissions on behalf of the respondent. I afforded Mr Balzola the opportunity to provide written submission in reply as there was insufficient time for him to do so orally. I also ordered that Mr Balzola file any submissions on which he sought to rely in respect of the contempt application by 14 August 2015. I reserved my decision in respect of the interlocutory applications.
- I propose to discuss the merits of the interlocutory application by reference to the issues identified earlier in these reasons, albeit there are necessarily overlaps in the matters discussed.
Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and or to seek leave to appeal on other grounds?
- It is clear from the terms of s 32 that the applicant is precluded from bringing an internal appeal against the decision of the appeal panel of 2014. But the applicant seeks to effectively “by-pass” that provision by seeking to again appeal the 2013 orders of the ADT.. The applicant also seeks to challenge the validity of the Certificate issued under s 114 of the Civil and Administrative Tribunal Act because of an asserted error in the spelling of the respondent’s name in the certificate, albeit at the same time seeking to challenge the validity of that certificate in the Supreme Court.
- The principal thrust of the submissions made on behalf of the applicant is that she was denied procedural fairness in the 2013 because she was not, as a self-represented litigant, warned by the Tribunal of three matters:
- that she should obtain legal representation;
- that the respondent had filed material which was potentially adverse to her; and
- if she did not appear the Tribunal may make a decision adverse to her.
- Ancillary to the assertions above, Mr Balzola further submits that the Tribunal is itself bound by the Model Litigant Guidelines, (semble the NSW Model Litigants Policy) and he relies on the decision of Croft J in Comaz (Aust) Pty Ltd v Commissioner of State Revenue  VSC 294.
Is it necessary at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?
- Mr Rodney submits that, if there is any error in the Certificate issued under s 114 of the Anti-Discrimination Act, that may be corrected under s 63 of theCivil and Administrative Tribunal Act. The terms of s 114 are clear. That section empowers the Tribunal to issue a certificate that may be registered in the Supreme Court to facilitate enforcement. Section 114 is in the following terms:
114 Enforcement of non-monetary orders
(1) This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.
(2) For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms.
(3) A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.
(4) Nothing in this section limits or otherwise affects section 78 of the Civil and Administrative Tribunal Act 2013.
- Section 63 of the Civil and Administrative Tribunal Act provides:
63 Power to correct errors in decisions of Tribunal
(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.
- Section 5 of the Civil and Administrative Tribunal Act defines the meaning of “decision”. It includes the giving of a certificate. The relevant decision of the Tribunal requires the applicant to give a written apology to the respondent who is named as Mr Garry Burns. The Board in its correspondence to the Tribunal in 2013 referred to receipt of a complaint by Mr Garry Burns. Correspondence on the relevant Tribunal file disclosed that the respondent communicated in writing with the Tribunal on various occasions and signed his name above typed words “Mr Garry Burns”.
- However, the certificate issued by the Registrar names the applicant as Mr Gary Burns but correctly records the Tribunal order which includes the requirement that the applicant write a letter of apology to Mr Garry Burns.
- In the present contempt proceedings the respondent’s solicitors name him as “applicant” using the spelling “Garry” for his first name.
- The file however discloses that the respondent wrote to the President of the Board on 31 January 2013 and concluded his letter with the typewritten description “Gary Burns”. It is unclear to me whether the respondent in the period between January 2013 and the present adopted a change of name, or whether the Board made a typographical error in the spelling of his given name. If there has been a typographical error, and the 2013 reasons and decision should read Gary rather than Garry for the purpose of the required apology, I am satisfied that the decision certificate under s 114 can be amended by application to the Registrar. Certainly, the inconsistency in the spelling of the respondent’s first given name in the certificate appears necessary.
- I note the submissions on this topic could be said to apply equally to documents filed by the applicant given that in those documents she is described with a given name of “Tess” and that she wrote to the Registrar of the ADT on 7 February 2014 using a typed name of Therese Corbett. In her Notice of Appeal in the 2014 appeal the applicant is described as “Therese Maree Corbett”.
- I am not satisfied on the state of the evidence now before me that it is appropriate I make any orders about either party’s name. The issue should be determined if necessary by both parties filing an application and evidence in support to request amendment to any Tribunal decision.
As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.
- I turn now to the substantial question of whether or not the Tribunal has jurisdiction to entertain a second appeal in respect of the 2013 decision.
- It is clear that the applicant exercised her right to appeal against the 2013 decision. In that appeal she was legally represented and was granted leave to file a statement in which she explained why she did not attend the hearing and her belief in respect of the effect of the NSW legislation. The Appeal Panel rejected this evidence noting “There was no suggestion that this evidence was not available at the time of the hearing”.
- I am satisfied that the applicant has exercised her appeal rights, and any argument that she may wish to raise in respect of procedural fairness is a matter to be raised in an application for an extension of time to seek leave to file an appeal to the Supreme Court of NSW against the dismissal of her appeal, or to seek judicial review.
- I am fortified in this view having regard to the discussion found in Australian Civil Procedure 10th ed. Cairns (Thomson Reuters) particularly at 6.130 (see also Cross on Evidence JD Heydon at  ). I also take into account the discussion in Metwally v University of Wollongong  HCA 28 60 ALR 68; 59 ALJR 481 where the High Court, having noted that the case before it was not “a case in which an order has been made against a party who was not heard”, said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
- While the applicant was not present at the primary hearing that was a deliberate choice she made. There is no doubt from her statement tendered at the appeal she was well aware of the hearing date. I further note she was provided with information in correspondence from the Tribunal about procedure at a case conference held prior to the hearing. She was represented by counsel at the appeal and had the opportunity to raise any issue relating to procedural fairness she wished to agitate.
- I am satisfied it would be an abuse of process under s 55 to permit a second appeal to go forward and this case does not fall within the “exceptional circumstance” type of matter referred to by the High Court in Metwally. The applicant has a remedy if she wishes to agitate it by seeking an extension of time to seek leave to appeal the appeal panel’s decision to the Supreme Court of NSW on a question of law.
- It follows having determined that to allow a further appeal (even if filed in time which this application is not) it is strictly unnecessary for me to consider both remaining interlocutory orders sought. However, in the event I am wrong about the right to bring a second appeal, I propose to discuss the other issues raised albeit briefly.
- I now consider whether on the evidence before me, the applicant has demonstrated she should be granted an extension of time in which to appeal and to seek leave to appeal the 2013 orders.
Relevant law principles – extension of time to appeal
- The principles to be applied on such an application are not in doubt. They are usefully set out in [18-22] in Jackson as follows:
Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act “is to facilitate the just, quick and cheap resolution of the real issue in the proceedings“.
An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson HCA 30, 93 ALR 479 at :
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v.Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT – Opera Australia Ltd v Carr  NSWADTAP 6 at , Chand v Rail Corporation of New South Wales No 3  NSWADTAP 11 at . These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard.
Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawsonquoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant’s favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant – Gallo v Dawson  HCA 30, 93 ALR 479 at , Nanschild v Pratt  NSWCA 85 at ;
The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision – Jackamarra v Krakouer (1998) 195 CLR 516 at , Nanschildv Pratt  NSWCA 85 at  and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success – Jackamarra at ;
Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
The length of the delay;
The reason for the delay;
The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and
The extent of any prejudice suffered by the respondent (to the appeal),
– Tomko v Palasty (No 2) (2007) 71 NSWLR 61at  (per Basten JA) but note also , Nanschild v Pratt  NSWCA 85 at  to ; and
It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable – Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at  (per Hodgson JA, Ipp JA agreeing at ) and Molyneux v Chief Commissioner of State Revenue  NSWADTAP 53 at  – .
Discussion – extension of time to appeal
- The delay since the 2013 orders is significant being a period of approximately 22 months. The reasons advanced for the delay are set out in paragraph 12A of the Notice of Appeal. They are:
- The appellant has only recently obtained the services of legal advice to assist in her matter on a pro bono basis.
- It is in the interests of justice that a decision fundamentally stained by manifest denial of procedure fairness be remedied.
- I do not accept the first argument advanced by the applicant. Her statement relied on before the appeal panel and her representation on the hearing of the appeal demonstrates that she had and obtained legal advice in 2014. There is simply no plausible explanation of why a further period of a year elapsed before this application was filed.
- In respect of her second argument I have already noted that she has had the benefit of appeal rights to the appeal panel in which she was able to argue any breach of the rules of natural justice and procedural fairness. She had a right to seek leave to appeal the internal appeal panel decision to the Supreme Court within the time provided in the rules but it appears on the evidence before me, that she chose not to do so. She may still seek an extension of time to do so.
- I am satisfied that because the applicant still has a remedy, namely the right to seek an extension of time to seek leave to appeal in the Supreme Court the refusal to grant an extension of time in which to appeal the 2013 orders will not cause her substantial prejudice.
- I also note that applicant’s application refers to the adducing of new evidence going to statutory defences under s 49 ZS and s 49ZT of the Anti-Discrimination Act and evidence sought to be adduced going to constitutional issues and rights of political expression at a hearing de novo. I note that the interpretation of “defences” under s 49 ZT was extensively argued before the appeal panel in the applicant’s internal appeal as was the question of implied right of political communication.
- At its highest the applicant’s case is that she may succeed on a constitutional issue if she satisfies another appeal panel that she was denied procedural fairness at the 2013 hearing. It is hard to see how the ADT could be said to have erred in not affording the applicant procedural fairness, when knowing full well the proceedings were listed for hearing, she took no steps at all to contact the Tribunal but simply chose to ignore the Tribunal’s correspondence to her including an information sheet about participation in a case conference (which could have occurred by telephone).
- I accept that when a party does not have notice of a hearing or may for some significant reason such as serious ill-health (as occurred in the factual situation in Allesch v Maunz 2000 HCA 40; 203 CLR 172) it may be appropriate to set aside an order made in that party’s absence. I also accept that in accordance with the duties owed by a court to a self-represented litigant a tribunal has a like duty. So much is clear from the many authorities dealing with the question of treatment of self-represented litigants including the decision of Croft J in Comaz. But the facts in Comaz are readily distinguishable from the present facts.
- In Comaz the departure from the rules of natural justice and procedural fairness arose because of the nature of the member’s questioning of a witness, the manner in which the proceedings were conducted, and the failure to warn a litigant in person of the likelihood of the drawing of an adverse inference because of a failure to adduce evidence from a crucial witness. The claims of lack of procedural fairness were exacerbated because of the manner in which a government body, as a model litigant before the tribunal, in its final submission first raised a Jones v Dunkel point without affording the self-represented party notice of its intention to do so, or for the presiding member to permit a re-opening by the applicant to meet that submission. Here the applicant with notice of the hearing in 2013 made a deliberate decision not to appear. It was at all times prior to the hearing within her capacity to contact the registry staff and to seek advice about the hearing including alternate means for her to participate in the hearing, and/or to file a statement asserting her belief that the Tribunal had no jurisdiction. She chose to take neither of those steps.
Should the Tribunal grant a stay of the 2013 orders?
- I have already noted that the applicant is not entitled to agitate a second appeal to the internal appeal panel. As a separate matter, I have found the applicant has not, in accordance with well-defined principles, satisfied the onus she bears, even if she had a right to a second appeal, to an extension of time in which to bring such an application.
- It follows therefore that it is unnecessary that I deal with her application for a stay of the 2013 orders.
Does the model litigant policy apply to the Tribunal as well as parties before it.
- Mr Balzola in his submissions in reply at  states:
It was open and necessary in the full discharge of the Tribunal’s obligations as a Model Litigant, acting solely upon the referral power conferred to it by s 93C of the Anti-Discrimination Act and its powers therein, to implement procedural fairness upon the party to whom that fairness was owed.
- It is unnecessary that on this interlocutory application I deal with this issue as it is not a justiciable matter before me. I merely note that the policy annexed to Mr Balzola’s submissions applies to the State and its agencies when litigating before Courts and Tribunals. It is a policy that affects agencies such as the Health Care Complaints Commission when that Commission refers proceedings to the Tribunal and then prosecutes such proceedings in the Tribunal. The Tribunal is not the State nor is it an agency of the state. It is, as the objects of the Civil and Administrative Tribunal Act record, an “independent” Tribunal charged with making decisions, reviewing decisions, determining some appeals against decisions and exercising such other functions as are conferred on it by legislation.
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.
DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
By MATT NEAL – Aug. 17, 2015, 4:59 p.m.
A decision on Tess Corbett’s matter will be made within three weeks.
A DECISION will be made within the next three weeks on whether former Wannon candidate Tess Corbett will be taken to the Supreme Court over her refusal to apologise for comments likening homosexuals to paedophiles.
The matter returned to the NSW Civil and Administrative Tribunal (NCAT) on Monday.
The Lake Bolac grandmother had failed to comply with an NCAT order to publish an apology in the Sydney Morning Herald after she was found guilty of vilifying homosexuals on three occasions during her 2013 election campaign for Katter’s Australian Party.
Ms Corbett’s lawyer attempted to re-agitate the original matter on Monday, but this was dismissed.
If the decision is made to refer Ms Corbett’s matter to the Supreme Court, it could potentially elevate the punishment, even opening up the possibility that Ms Corbett could be jailed for her breach of the NCAT order.
FORMER KATTER PARTY CANDIDATE TESS CORBETT TO FACE COURT ON “ CONTEMPT OF TRIBUNAL”FOR IMMEDIATE RELEASE
14 August 2015A former candidate from Bob Katter’s Australia Party who likened gays and lesbians to pedophiles during an interview on the campaign trail in the 2013 General Election has refused to comply with the Orders of the court and publish an apology pursuant to the Anti-Discrimination Act 1977 in the Sydney Morning Herald.Tess Corbett was Bob Katter’s candidate for the Victorian Seat of Wannon in the federal election until she stood down in January of 2013 after telling her local paper “ I don’t want gays , lesbians or pedophiles working in my kindergarten”.“ If you don’t like it , go to another kindergarten , Ms.Corbett told the Hamilton Spectator.When asked if she considered homosexuals to be in the same category as pedophiles , Ms.Corbett replied “ yes”.“ Pedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights, “ she said.Anti-Discrimination Campaigner Garry Burns took the matter to the Anti-Discrimination Board , claiming her statement’s breached the Anti-Vilification Provisions of the Anti-Discrimination Act 1977 ( NSW ).On Monday 17 August 2015 at 2pm a hearing will be held in the NSW Civil Administrative Tribunal ( NCAT ) ( Court 10.3 ) to determine if Ms.Corbett is in “contempt of the Tribunal” for refusing to publish an apology as ordered in the Sydney Morning Herald and to apologise to Mr.Burns.The address of the hearing is :NSW Civil Administrative Tribunal ( NCAT )John Maddison TowerLevel 10 86-90 Goulburn StreetSydney NSW 2000.Mr.Burns said “ This was a creative settlement. It’s terms reflect my belief in the public interest in defending gay men and women’s rights to freedom from discrimination and vilification. If Ms.Corbett thinks she can avoid a court order and refuse to publish an apology in relation to her unlawful conduct she better think again because the hearing on Monday may well remind her she is not above the law”.“ For highly distressing reasons , the Australian public at the present day is being made particularly aware of the serious and long -lasting psychological damage suffered by victims of pedophilia, “The Tribunal’s Deputy President Michael Chesterman said in his written decision.“ At any time , and especially at this time , and pronouncement that “brackets”… homosexual people with pedophiles is capable of ….urging ( people ) to treat homosexuals as deserving to be hated or to be regarded with serious contempt”.“ Ms.Corbett’s claims …. do not merely offend or insult : they incite these negative reactions”.ENDSMedia ContactGarry Burns02-9363-03720407-910-309
Jez Smith wants to show all followers of idiot Mckee that he fabricates the information on his web site. As Jez said to me “this guy is crazy, he makes up bazaar stories which are all lies. I don’t know what satisfaction he gets out of making up all these lies, maybe it is the “little penis syndrome he is suffering”.
You really are an idiot or delusional, Saying I buy rent boys in Thailand then show a video that I am not in, good work McKee, you idiot.
All this crap about me having some sort of rent boy business in Brisbane is just so laughable….Do you really think the average person believes any crap you put on your web site.
My WIX account, has had samples of web sites for clients you idiot, yup, I do a little web design work on the side, and you assume they are my businesses, they are also legal businesses in Australia, you are so gullible you idiot.
By the way, yes I was in Thailand some months ago (the first time in over 20 years), as per your hacking of my gmail, it is much cheaper to have my teeth fixed in Thailand than Australia, and a holiday at the same time.
Such a pitty there is nothing saucy going on in my life like you are portraying, I am just an average guy doing average things…
You really need specialist Psychological help as your obsession about gays is not healthy for you and your belief that gay men are paedophiles is simply laughable.
Did someone play with little Luke? an uncle or father? Is that why you have this disgusting fixation on child sex….
You are one sick puppy….
We have opened a new twitter account (I lost my password), so please join us here
(original article here) – UC DAVIS University Of California – Psychology
Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as “fixated;” 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that “in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to menexceed their preference for women….There were no men who were primarily sexually attracted to other adult males…” (p.180).
|Facts About Homosexuality and Child Molestation|
|Prof. Herek’s blog Subscribe to
Prof. Herek’s blog
|Members of disliked minority groups are often stereotyped as representing a danger to the majority’s most vulnerable members. For example, Jews in the Middle Ages were accused of murdering Christian babies in ritual sacrifices. Black men in the United States were often lynched after being falsely accused of raping White women.In a similar fashion, gay people have often been portrayed as a threat to children. Back in 1977, when Anita Bryant campaigned successfully to repeal a Dade County (FL) ordinance prohibiting anti-gay discrimination, she named her organization “Save Our Children,” and warned that “a particularly deviant-minded [gay] teacher could sexually molest children” (Bryant, 1977, p. 114). [Bibliographic references are on a different web page]In recent years, antigay activists have routinely asserted that gay people are child molesters. This argument was often made in debates about the Boy Scouts of America’s policy to exclude gay scouts and scoutmasters. More recently, in the wake of Rep. Mark Foley’s resignation from the US House of Representatives in 2006, antigay activists and their supporters seized on the scandal to revive this canard.
It has also been raised in connection with scandals about the Catholic church’s attempts to cover up the abuse of young males by priests. Indeed, the Vatican’s early response to the 2002 revelations of widespread Church cover-ups of sexual abuse by priests was to declare that gay men should not be ordained.
|Public belief in
|The number of Americans who believe the myth that gay people are child molesters has declined substantially. In a 1970 national survey, more than 70% of respondents agreed with the assertions that “Homosexuals are dangerous as teachers or youth leaders because they try to get sexually involved with children” or that “Homosexuals try to play sexually with children if they cannot get an adult partner.”1By contrast, in a 1999 national poll, the belief that most gay men are likely to molest or abuse childrenwas endorsed by only 19% of heterosexual men and 10% of heterosexual women. Even fewer – 9% of men and 6% of women – regarded most lesbians as child molesters.Consistent with these findings, Gallup polls have found that an increasing number of Americans would allow gay people to be elementary school teachers. For example, the proportion was 54% in 2005, compared to 27% in 1977.|
|Even though most Americans don’t regard gay people as child molesters, confusion remains widespread in this area. To understand the facts, it is important to examine the results of scientific research. However, when we evaluate research on child molestation, our task is complicated by several problems.One problem is that none of the studies in this area have obtained data from a probability sample, that is, a sample that can be assumed to be representative of the population of all child molesters. Rather, most research has been conducted only with convicted perpetrators or with pedophiles who sought professional help. Consequently, they may not accurately describe child molesters who have never been caught or have not sought treatment.|
|Terminology||A second problem is that the terminology used in this area is often confusing and can even be misleading. We can begin to address that problem by defining some basic terms.Pedophilia and child molestation are used in different ways, even by professionals. Pedophilia usually refers to an adult psychological disorder characterized by a preference for prepubescent children as sexual partners; this preference may or may not be acted upon. The term hebephilia is sometimes used to describe adult sexual attractions to adolescents or children who have reached puberty.Whereas pedophilia and hebephilia refer to psychological propensities, child molestation and child sexual abuse are used to describe actual sexual contact between an adult and someone who has not reached the legal age of consent. In this context, the latter individual is referred to as a child, even though he or she may be a teenager.
Although the terms are not always applied consistently, it is useful to distinguish between pedophiles/hebephiles and child molesters/abusers. Pedophilia and hebephilia are diagnostic labels that refer to psychological attractions. Not all pedophiles and hebephiles actually molest children; an adult can be attracted to children or adolescents without ever actually engaging in sexual contact with them.
Child molestation and child sexual abuse refer to actions, and don’t imply a particular psychological makeup or motive on the part of the perpetrator. Not all incidents of child sexual abuse are perpetrated by pedophiles or hebephiles; in some cases, the perpetrator has other motives for his or her actions and does not manifest an ongoing pattern of sexual attraction to children.
Thus, not all child sexual abuse is perpetrated by pedophiles (or hebephiles) and not all pedophiles and hebephiles actually commit abuse. Consequently, it is important to use terminology carefully.
Another problem related to terminology arises because sexual abuse of male children by adult men2 is often referred to as “homosexual molestation.” The adjective “homosexual” (or “heterosexual” when a man abuses a female child) refers to the victim’s gender in relation to that of the perpetrator. Unfortunately, people sometimes mistakenly interpret it as referring to the perpetrator’s sexual orientation.
As an expert panel of researchers convened by the National Academy of Sciences noted in a 1993 report: “The distinction between homosexual and heterosexual child molesters relies on the premise that male molesters of male victims are homosexual in orientation. Most molesters of boys do not report sexual interest in adult men, however” (National Research Council, 1993, p. 143, citation omitted).
To avoid this confusion, it is preferable to refer to men’s sexual abuse of boys with the more accurate label of male-malemolestation. Similarly, it is preferable to refer to men’s abuse of girls as male-female molestation. These labels are more accurate because they describe the sex of the individuals involved but don’t implicitly convey unwarranted assumptions about the perpetrator’s sexual orientation.
|The distinction between a victim’s gender and a perpetrator’s sexual orientation is important because many child molesters don’t really have an adult sexual orientation. They have never developed the capacity for mature sexual relationships with other adults, either men or women. Instead, their sexual attractions focus on children – boys, girls, or children of both sexes.Over the years, this facthas been incorporated into various systems for categorizing child molesters. For example,Finkelhor andAraji (1986) proposed that perpetrators’ sexual attractionsshould be conceptualized as ranging along a continuum – from exclusive interest in children at one extreme, to exclusive interest in adult partners at the other end.Typologies of offenders have often included a distinction between those with an enduring primary preference for children as sexual partners and those who have established age-appropriate relationships but become sexually involved with children under unusual circumstances of extreme stress. Perpetrators in the first category – those with a more or less exclusive interest in children – have been labeled fixated. Fixation means “a temporary or permanent arrestment of psychological maturation resulting from unresolved formative issues which persist and underlie the organization of subsequent phases of development” (Groth & Birnbaum, 1978, p. 176). Many clinicians view fixated offenders as being “stuck” at an early stage of psychological development.
By contrast, other molesters are described as regressed. Regression is “a temporary or permanent appearance of primitive behavior after more mature forms of expression had been attained, regardless of whether the immature behavior was actually manifested earlier in the individual’s development” (Groth & Birnbaum, 1978, p. 177). Regressed offenders have developed an adult sexual orientation but under certain conditions (such as extreme stress) they return to an earlier, less mature psychological state and engage in sexual contact with children.
Some typologies of child molesters divide the fixation-regression distinction into multiple categories, and some include additional categories as well (e.g., Knight, 1989).
For the present discussion, the important point is that many child molesters cannot be meaningfully described as homosexuals, heterosexuals, or bisexuals (in the usual sense of those terms) because they are not really capable of a relationship with an adult man or woman. Instead of gender, their sexual attractions are based primarily on age. These individuals – who are often characterized as fixated – are attracted to children, not to men or women.
Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as “fixated;” 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that “in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to menexceed their preference for women….There were no men who were primarily sexually attracted to other adult males…” (p.180).
|Other researchers have taken different approaches, but have similarly failed to find a connection between homosexuality and child molestation. Dr. Carole Jenny and her colleagues reviewed 352 medical charts, representingall of the sexually abused children seen in the emergency room or child abuse clinic of a Denver children’s hospital during a one-year period (from July 1, 1991 to June 30, 1992). The molester was a gay or lesbian adult in fewer than 1% of casesin which an adult molester could be identified – only 2 of the 269 cases (Jenny et al., 1994).In yet another approach to studying adult sexual attraction to children, some Canadian researchers observed how homosexual and heterosexual adult men responded to slides ofmales andfemales of various ages (child, pubescent, and mature adult). All of the research subjects were first screened toensure that they preferred physically mature sexual partners. In some of the slides shown to subjects, the modelwas clothed; in others, he or she was nude. The slideswere accompanied by audio recordings. The recordings paired with the nude models described an imaginary sexual interaction between the model and the subject. The recordings paired with the pictures of clothed models described the model engaging in neutral activities (e.g., swimming). To measure sexual arousal, changes in the subjects’ penis volumewere monitored while they watched the slides and listened to the audiotapes. The researchers found that homosexualmales responded no more to male children than heterosexualmales responded to female children (Freund et al., 1989).In summary, each of these studies failed to support the hypothesis that homosexual males are more likely than heterosexual men to molest children or to be sexually attracted to children or adolescents.|
|Reflecting the results of these and other studies, as well as clinical experience, the mainstream view among researchers and professionals who workin the area of child sexual abuse is that homosexual and bisexual men do not pose any special threat to children. For example, in one review of the scientific literature, noted authority Dr. A. NicholasGroth wrote:
In a later literature review, Dr. Nathaniel McConaghy (1998) similarly cautioned against confusing homosexuality with pedophilia. He noted, “The man who offends against prepubertal or immediately postpubertal boys is typically not sexually interested in older men or in women” (p. 259).
This well known lack of a linkage between homosexuality and child molestation accounts for why relatively little research has directly addressed the issue. For example, a 1998 comprehensive review of published empirical research on the sexual abuse of boys reported only one study (the 1994 study by Jenny and colleagues, cited above) that included data about the self-reported sexual orientation of perpetrators (Holmes & Slap, 1998).
Proving something that is already widely known simply isn’t a priority for scientists. Indeed, a commentary that accompanied publication of the study by Jenny et al. in Pediatrics noted that debates about gay people as molesters “have little to do with everyday child abuse” and lamented that they distract lawmakers and the public from dealing with the real problem of children’s sexual mistreatment (Krugman, 1994).
|In scandals involving the Catholic church, the victims of sexual abuse were often adolescent boys rather than small children. Similarly, the 2006 congressional page scandal involved males who were at least 16 years old.These are cases in which the term pedophilia – referring as it does to attractions to prepubescent children – can cause confusion. Rather than pedophilia, the accusations stemming from these scandals raisedthe question of whether gay peopleshouldn’t be trusted in positions of authority where there is any opportunity for sexually harassing or abusing others.Here again, there is no inherent connection between an adult’s sexual orientation and her or his propensity for endangering others. Scientific research provides no evidence that homosexual people are less likely than heterosexuals to exercise good judgment and appropriate discretion in their employment settings. There are no data, for example, showing that gay men and lesbians are more likely than heterosexual men and women to sexually harass their subordinates in the workplace. Data from studies using a variety of psychological measures do not indicate that gay people are more likely than heterosexuals to possess any psychological characteristics that would make them less capable of controlling their sexual urges, refraining from the abuse of power, obeying rules and laws, interacting effectively with others, or exercising good judgment in handling authority. As explained elsewhere on this site, sexual orientation is not a mental illness nor is it inherently associated with impaired psychological functioning.
Gay men and lesbians function effectively in a wide variety of employment settings. The research literature doesn’t reveal any differences between heterosexuals, bisexuals, and homosexuals in job performance or ability to properly exercise authority in supervisory roles. As indicated by workplace policies around the United States, a large and growing number of private and public employers do not perceive a problem with hiring gay and bisexual people as employees or managers. Many corporations, educational institutions, and local governments have adopted policies that prohibit discrimination against employees on the basis of sexual orientation. Many of those organizations provide benefits such as health insurance for employees’ same-sex partners. Indeed, one widely cited reason for offering such benefits is that they enable a company to remain competitive by attracting high quality employees who happen to be gay, lesbian, or bisexual.
Thus, there is no factual basis for organizations to avoid hiring homosexual or bisexual people, simply on the basis of their sexual orientation, for positions that involve responsibility for or supervision of others, whether children, adolescents, or adults.
|What About Claims That Scientific Research Proves Gay Men Are Likely To Molest Children?Some conservative groups have argued that scientific research strongly supports their claims that homosexuality and pedophilia are linked. The Family Research Council has produced what is perhaps the most extensive attempt to document this claim. It is an article by Timothy J. Dailey titledHomosexuality and Child Abuse.With 76 footnotes, many of them referring to papers in scientific journals, it appears at first glance to be a thorough and scholarly discussion of the issue. On further examination, however, its central argument – that “the evidence indicates that homosexual men molest boys at rates grossly disproportionate to the rates at which heterosexual men molest girls” – doesn’t hold up.
In the following section, the main sources cited by Dailey and the FRC to support their claim are reviewed. The papers are listed in the same order in which they are first cited by the FRC article.
In summary, the scientific sources cited by the FRC report do not support their argument. Most of the studies they referenced did not even assess the sexual orientation of abusers. Two studies explicitly concluded that sexual orientation and child molestation are unrelated. Notably, the FRC failed to cite the 1978 study by Groth and Birnbaum, which also contradicted their argument. Only one study (Erickson et al., 1988) might be interpreted as supporting the FRC argument, and it failed to detail its measurement procedures and did not differentiate bisexual from homosexual offenders.
|Do Any Studies Claim To Show That Homosexuals Are More Likely To Molest Children?One individual has claimed to have data that prove homosexuals to be child molesters at a higher rate than heterosexuals. That person is Paul Cameron. As detailed elsewhere on this site, Cameron’s survey data are subject to so many methodological flaws asto bevirtually meaningless. Even so, his assertions are sometimes quoted byantigay organizations in their attempts to link homosexuality with child sexual abuse.In a 1985 article published in Psychological Reports, Cameron purported to review published data to answer the question, “Do those who commit homosexual acts disproportionately incorporate children into their sexual practices?” (p. 1227). He concluded that “at least one-third of the sexual attacks upon youth are homosexual” (p. 1228) and that “those who are bi- to homosexual are proportionately much more apt to molest youth” than are heterosexuals (p. 1231).
Cameron’s claims hinge on the fallacious assumption that all male-male molestations are committed by homosexuals. Moreover, a careful reading of Cameron’s paper reveals several false statements about the literature he claimed to have reviewed.
For example, he cited the Groth and Birnbaum (1978) study mentioned previously as evidencing a 3:2 ratio of “heterosexual” (i.e., female victim) to “homosexual” (i.e., male victim) molestations, and he noted that “54% of all the molestations in this study were performed by bisexual or homosexual practitioners” (p. 1231). However, Groth and Birnbaum reported that none of the men in their sample had an exclusively homosexual adult sexual orientation, and that noneof the 22 bisexual men were more attracted to adult males than to adult females. The “54%” statistic reported by Cameron doesn’t appear anywhere in the Groth and Birnbaum (1978) article, nor does Cameron explain its derivation.
It is also noteworthy that, although Cameron assumed that the perpetrators of male-male molestations were all homosexual, he assumed that not all male-female molestations were committed by heterosexuals. He incorporated a “bisexual correction” into his data manipulations to increase further his estimate of the risk posed to children by homosexual/bisexual men.
In the latter half of his paper, Cameron considered whether “homosexual teachers have more frequent sexual interaction with their pupils” (p. 1231). Based on 30 instances of sexual contact between a teacher and pupil reported in ten different sources published between 1920 and 1982, Cameron concluded that “a pupil would appear about 90 times more likely to be sexually assaulted by a homosexual practitioner” (p.1232); the ratio rose to 100 times when Cameron added his bisexual correction.
This ratio is meaningless because no data were obtained concerning the actual sexual orientation of the teachers involved; as before, Cameron assumed that male-male contacts were perpetrated by homosexuals. Furthermore, Cameron’s rationale for selecting particular sources appears to have been completely arbitrary. He described no systematic method for reviewing the literature, and apparently never reviewed the voluminous literature on the sexual development of children and adolescents. His final choice of sources appears to have slanted his findings toward what Cameron described as “the relative absence in the scientific literature of heterosexual teacher-pupil sexual events coupled with persistent, albeit infrequent, homosexual teacher-pupil sexual interactions” (p. 1232).
A subsequent paper by Cameron and others (Cameron, Proctor, Coburn, Forde, Larson, & Cameron, 1986) described data collected in a door-to-door survey in seven U.S. cities and towns, and generally repeated the conclusions reached in Cameron (1985). Even Cameron himself admitted that his conclusions in this study are “based upon small numbers of data points” (Cameron, 2005, p. 230). As before, male-male sexual assaults were referred to as “homosexual” molestations (e.g., Abstract, p.327) and the perpetrators’ sexual orientation apparently was not assessed. This study also suffers from fatal methodological problems, which are detailed elsewhere on this site.
In yet another article published in Psychological Reports, Cameron claimed to have reviewed data about sexual abuse by foster parents in Illinois and found that 34% of the perpetrators had abused a foster child of their own sex, that is, female-female or male-male abuse (Cameron, 2005). Not only did Cameron again make the fallacious claim that all male-male molestations are committed by homosexuals, he also made the same claim about female-female molestations. Once again, he had no data about the actual sexual orientations of the molesters.
Cameron continues to produce reports that essentially repeat the same inaccurate claims. Perhaps one of the best indicators of his diminished credibility in this area is that his work was not even cited in the 2004 FRC report discussed in detail above.
The empirical research does not show that gay or bisexual men are any more likely than heterosexual men to molest children. This is not to argue that homosexual and bisexual men never molest children. But there is no scientific basis for asserting that they are more likely than heterosexual men to do so. And, as explained above, many child molesters cannot be characterized as having an adult sexual orientation at all; they are fixated on children.
|1.||The survey was conducted under the auspices of the Kinsey Institute (Klassen, Williams, & Levitt, 1989). (return to text)|
|2.||Sexual abuse by women occurs but has not been well documented. Perhaps it is not surprising, therefore, that the child molester stereotype is applied more often to gay men than to lesbians. (return to text)|
I fight against Homophobic people 24/7, a job I do for the gay community, a job I do to stop hatred, a job I do to make the world a safer place for our teen gays.
I often have homophobic / hate messages sent to me, however when they become threatening like the story I am about to tell, it is time you all knew the potential dangers not just I face, but we all may face.
For 8 years now, there has been an aggressive, gay hating, black hating, religious preaching nut job by the name of Luke McKee who is obsessed with me ( see his disgusting web site -(victimsofgaybullying.wordpress.com).
You will see his obsession with me on EVERY page of his blog, you will see his absolute hatred to homosexuals. While this type of hatred is annoying, i understand it comes with the work that I do, however when lunatics like Luke McKee starts threatening my life and the life of my associates, enough is enough, and I will no longer be silenced by this gay hating lunatic.
He takes pride in being elusive to the NSW Police how would like to chat to him, however he does not realise we now have his address in Hanoi, Vietnam, so the noose is about to get tighter around Mckee’s neck.
His wife Nguyen Trang also has an unhealthy obsession for child rape (see her site here )..
RECENT THREAT FROM TRANG –
Luke McKee’s wife Nguyen Trang sent me this message , which wasn’t published ( fully sic )
” Fuck you Gary burns . I am Luke wife and Vietnamese , don’t go around talking shut up about my husband. If kind of animal like you near my child’s or country so I will take you bank to your forest or I will kill you immediately”
You stupid bitch before you threaten me could at least learn how to spell and speak proper English, being that you teach English in Hanoi for a living!
This is just one of many threats I receive from Trang and Mckee, check out his web site here to read the threats and filth!
I allege Ms.Trang along with her husband Luke McKee have made threats to harm me and others in Australia, including very senior NSW Police Officers and Politicians. There are a number of valid arrest warrants for Luke McKee in Sydney,, Australia. and I allege NSW Police want Luke McKee for arrest. I further allege both of these individuals are dangerous lunatics.
P.S – Mckee – How is your wife’s business going AEC? I see Trang is looking for teachers, maybe I could help teach the children.
What is homophobia?
The word homophobia comes from the Greek ‘homo’ (meaning ‘same’) and ‘phobia’ (meaning ‘fear’). It is used to describe a fear or a negative attitude towards gay people.
It can take many forms including insults, discrimination or more extreme levels of intimidation and even violence. With 2 out of 5 victims of homophobic bullying attempting or contemplating suicide this is a very serious issue. Homophobia can be subtle. You may feel you’re being ignored or treated with less respect than your peers. It can also be very obvious.
It’s a sad truth but if you’re gay, you may encounter homophobia at some point. Being picked on for your sexuality can be upsetting and embarrassing but remember you’re not the problem, they are.It may be comforting to know that the majority of homophobes act out of ignorance and fear. Often it’s a question of immaturity.
Like bullies, homophobes get satisfaction and power from putting others down. You could try taking the wind out of their sails by refusing to rise to the insult, e.g. “Yes, I’m gay. So what?” As with bullying, you shouldn’t suffer in silence. Secrecy is likely to empower them in their mistaken belief that being gay is something to keep quiet about. Seek out support from anyone you trust and let them know what’s going on. They may be able to intervene or just help you feel supported.
Kindly re-printed from www.stop-homophobia.com
Arthur Ashe Courage Award
The Arthur Ashe award “is meant to honor individuals whose contributions transcend sports through courageous action,” ESPN said in a statement when it was forced to address criticism of its selection. “We are proud to honor Caitlyn Jenner embracing her identity and doing so in a public way.”
Award nominations are controversial — some worthy nominees get snubbed and others overlooked. Individuals like Lauren Hill, the inspiring 19-year-old basketball player who died from brain cancer earlier this year, are equally deserving of praise and admiration.
But the criticism surrounding Jenner’s selection hasn’t been based on her athletic prowess, her activism or her courage. It’s based on deeply seeded transphobia perpetuated by those who focus on genitalia rather than gender identity — people who ask invasive personal questions that fuel dangerous tabloid voyeurism.
The world of sports is still a notoriously unaccepting place for many trans athletes. States like Virginia and North Carolina require students to play on teams based on the gender listed on their birth certificate, and no openly transgender competitor has ever participated in the Olympics, though they may be allowed to.
Jenner’s actions unequivocally transcend the nature of a sports landscape that’s still struggling to accept gay athletes, let alone transgender ones. Her bravery compelled a room of many of the world’s most celebrated athletes to give her a standing ovation.
“Trans people deserve something vital. They deserve your respect,” Jenner said at the event. “And from that respect comes a more compassionate community, a more empathetic society and a better world for all of us.”
I wanted to share this post from Huff Post as it is a short but poignant message
Discrimination is designed to subjugate a group of persons. Just as we don’t want to be victimized for the color of our skin and want to be treated with dignity and respect; we must learn to do the same for our brothers and sisters that identify as gay. Biblically there was one group of people that consistently angered God, and that was the religious self-righteous. The religious self-righteous were prideful and arrogant and acted as if their superiority positioned them for more moral greatness than others. However, these religious elites irritated and saddened God because He saw this group of people as arrogant, unloving, hypocritical, and judgmental. – End quote.
For ALL the bigots, haters, homophobes, if your God says it’s O.K, why don’t you support Gay Equality like him…
ANNE MATHER MERCURY
THE State Government has been urged to hold accountable a man who is refusing to apologise for distributing pamphlets opposing homosexuality.
Launceston man James William Durston was found to have breached the Anti-Discrimination Act by distributing leaflets called “Homosexual Stats”.
The Anti-Discrimination Tribunal ordered he publicly apologise because the pamphlets “humiliated, insulted and ridiculed homosexuals on the basis of their sexual orientation”.
But Mr Durston has refused to apologise and threatened to appeal the matter in the High Court of Australia if further action is taken against him.
“I won’t be apologising … the ruling is unlawful,” he said yesterday.
Gay rights advocate Rodney Croome has called on the Government to step in and enforce last month’s ruling by the Anti-Discrimination Tribunal.
“To maintain confidence in the Anti-Discrimination Act, and to ensure Tasmania is a safe and inclusive society, the Tasmanian Government must do everything it can to uphold the ruling against Mr Durston,” Mr Croome said.
“Mr Durston’s flippant attitude to the Anti-Discrimination Tribunal sends a message to other potential perpetrators that can ignore the Tribunal’s findings.”
The State Government stood at arm’s length from the matter yesterday, declining to comment because the Anti-Discrimination Tribunal is an independent statutory body.
However, Mr Durston is liable to pay a fine of up to $1540 if he refuses to adhere to the tribunal’s ruling within a week.
Under the ruling, he was ordered to make a public apology and retraction through a notice in the Mercury newspaper.
Mr Durston said he believed the tribunal was curbing free speech.
“It is instilling fear through intimidation tactics to Tasmanian people if they dare to speak out,” he said.
In a submission to the tribunal following the ruling, he called the decision “a gross perversion of justice in ignorance of both fact and law”.
In the ruling, tribunal member Margaret Otlowski agreed with the views of the man who took the case against the leaflet, senior Tasmanian public servant Robert Williams.
Mr Williams made a complaint against “Threewisemonkeys”, the name the pamphlets were produced under.
Mr Durston conceded in the tribunal that he was the person responsible for the dissemination of the pamphlets and represented “Threewisemonkeys”.
Mr Williams said yesterday he was disappointed Mr Durston thought he was above the law.
“In such a serious matter as this, where the Anti-Discrimination Tribunal has said Mr Durston broke the law, it saddens me that he won’t accept the umpire’s ruling,” Mr Williams said.
“Actions such as Mr Durston publishing of this hateful flyer cause much damage in our community and are the very reason laws like the Anti-Discrimination Act exist.”
- Medium Neutral Citation:
- Gaynor v Burns  NSWCATAP 150
- Hearing dates:
- By written submissions 3 June 2015; 10 and 11 June 2015
- Date of orders:
- 23 July 2015
- Decision date:
- 23 July 2015
- Appeal Panel
- Boland J ADCJ, Deputy President
Emeritus Professor M Chesterman, Principal Member
L Robberds, QC, Senior Member
- 1. The appellant shall pay the costs of and incidental to the appeal including the submissions on costs as agreed and failing agreement within 28 days of the date of this order as assessed under Part 4.3 Div 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).
2. The costs agreed or assessed under Order 1 of these orders shall be payable within 14 days of agreement or assessment.
- APPEAL – application for costs of appeal allowed by consent. Whether there are “special circumstances” for the purposes of s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). Whether costs order should be made in favour of respondent to the appeal. Whether costs should be payable “forthwith”.
- Legislation Cited:
- Administrative Decisions Tribunal Act 1997 (NSW) (repealed)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Suitors Fund Act 1957 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
- Cases Cited:
- Cabal v United Mexican States  FCA 7
CPD Holdings Pty Ltd t/a The Bathroom Exchange v Baguley  NSWCATAP 21
Cripps v G & M Dawson  NSWCA 81
Fiduciary Limited and Anor v Morningstar Research Pty Ltd & Ors  NSWCA 432
Megerditchian v Kurmond Homes Pty Ltd  NSWATAP 120
- Bernard Gaynor (Appellant)
Garry Burns (Respondent)
P King (Appellant)
K Nomchong SC (Respondent)
Robert Balzola and Associates (Appellant)
K & L Gates (Respondent)
- File Number(s):
- AP 15/05125
- Publication restriction:
- Decision under appeal
REASON FOR DECISION
- On 27 April 2015 the appeal panel commenced to hear an application for leave to appeal, and if granted, an appeal lodged by Mr Bernard Gaynor (Mr Gaynor) against orders made by Hennessy LCM, Deputy President on 20 January 2015. Before her Honour Mr Gaynor sought orders that proceedings in respect of three complaints made against him by Mr Garry Burns (Mr Burns) should be summarily dismissed. Those proceedings were allocated file number 1410372. The summary dismissal application that was brought under s 102 of the Anti-Discrimination Act 1977 (NSW) was refused by her Honour, Hennessy LCM.
- Before us, after a short adjournment, the parties agreed in circumstances more fully set out below, that orders should be made by us by consent granting leave to appeal, and allowing the appeal. The orders made by Hennessy LCM were set aside. Further orders were made remitting the summary dismissal application for re-hearing and a time-table made for the filing of submissions on costs. Submissions were received from Mr Burns on 3 June 2015 and Mr Gaynor on 10 and 11 June 2015.
- In his submissions Mr Burns seeks orders from the appeal panel as follows:
- The Respondent seeks order that:
- the Appellant pay the Respondent’s costs of and incidental to the appeal proceedings up to and including this costs application;
- that the costs so ordered shall be as agreed or assessed;
- that costs shall be payable forthwith.
- In his submissions Mr Gaynor opposes any order being made in respect of costs. He submits that there should be no departure from s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW), namely, that each party pay that party’s own costs of the proceedings.
- To give context to the present competing applications it is necessary that we refer to factual aspects of the proceedings before her Honour, Hennessy LCM.
- Mr Burns complained to the Anti-Discrimination Board (the Board) in May 2014 alleging three complaints of unlawful discrimination under s 49 ZT of the Anti-Discrimination Act by Mr Gaynor. The complaints were referred to the Tribunal in June 2014. We will refer to these complaints as Complaints 1, 2 and 3. The file number allocated to these complaints is 1310372.
- On 13 August 2014 Mr Burns filed Points of Claim in the proceedings in respect of Complaints 1, 2 and 3.
- In about October/November 2014 Mr Burns lodged a further complaint with the Board (Complaint 4) about Mr Gaynor’s conduct. This became proceedings file number 14766. Subsequently, but within the same time period, he filed with the Board further complaints, also about Mr Gaynor’s conduct (Complaints 5, 6 and 7). Those complaints were allocated file nos 14834, 14716 and 14842 respectively.
- On 8 December 2014 Mr Gaynor filed an interlocutory application seeking orders, including orders that the proceedings, (which related to Complaints 1,2 and 3), be struck out. In support of this application Mr Gaynor relied on an affidavit sworn by his solicitor, Mr Robert Balzola (Mr Balzola) and filed on 8 December 2014. Mr Balzola annexed to his affidavit Mr Gaynor’s response to Complaints 4, 5, 6 and 7. The content of the response was not relevant to the interlocutory application.
- At the hearing before her Honour on 20 January 2015, in addition to Mr Balzola’s affidavit, Mr Gaynor filed and sought to rely on an affidavit that annexed a large quantity of material comprising some two volumes. Because of the late filing of Mr Gaynor’s affidavit, her Honour only admitted into evidence on the interlocutory application specific parts of the annexures to Mr Gaynor’s affidavit to which she was directed by Mr Balzola, and Mr Balzola’s affidavit.
- At the commencement of the appeal, it was submitted on behalf of Mr Burns that her Honour had fallen into error in determining the application. It was submitted in refusing to summarily dismiss the proceedings her Honour’s reasons made it clear that she had mistakenly relied on the material annexed to Mr Balzola’s affidavit that related to Complaints 4 to 7 inclusive and not Complaints 1 to 3.
- Both parties acknowledged before us that, at no time during the hearing, did either party point out to her Honour that the material annexed to Mr Balzola’s affidavit had no direct relevance to the issues to be determined by her on the summary dismissal application. Nor was any attempt made to correct her Honour’s misapprehension during the course of the delivery of her oral reasons. Further, the grounds of appeal set out in the Notice of Appeal and as further elaborated in the document filed on 24 March 2015 entitled “Outline of Case of the Appellant” (Restatement of Grounds of Appeal under Item 12A of the Notice of Appeal filed 30 January 2015) do not raise her Honour’s mistaken reliance on the annexures to Mr Balzola’s affidavit.
- Before us, Ms K Nomchong SC, (Ms Nomchong), who appeared for Mr Burns on the hearing of the appeal, most appropriately, conceded that leave to appeal should be granted, and the appeal allowed. We record that Ms Nomchong helpfully identified the background that explained how the error occurred in her Honour’s reasons.
- Mr P King (Mr King), counsel for Mr Gaynor, having the benefit of Ms Nomchong’s submissions, obtained instructions from his client. Ultimately, the parties asked that we make consent orders granting leave to appeal and allowing the appeal. We also made a number of orders and directions staying various other proceedings between the parties until the hearing of the summary dismissal application.
The relevant law
- It is not subject of dispute that s 60 of the Civil and Administrative Tribunal Act governs this application. It provides as follows:
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(5) In this section:”costs” includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
- The words “special circumstances” appear in a number of legislative provisions, and have been subject of discussion and comment in respect of the relevant legislation under consideration in each case (see Cabal v United Mexican States  FCA 7) and in this Tribunal (see CPD Holdings Pty Ltd t/a The Bathroom Exchange v Baguley  NSWCATAP 21; Megerditchain v Kurmond Homes Pty Ltd  NSWCATAP 120).
- The Macquarie Dictionary defines “special” as follows:
- Of a distinct or particular character.
(6) Distinguished or different from what is ordinary or usual: special circumstances.
- The drafting of s 60(1) evinces the intent of the legislature that generally each party to proceedings in the Tribunal shall be responsible for their own costs. Departure from s 60 (1) may occur but only if the Tribunal finds, there are “special circumstances” warranting it to do so. In determining whether there are special circumstances the Tribunal may, in a structured exercise of discretion, have regard to the criteria in s 60 (3) (a) – (g).
- In Cripps v G & M Dawson  NSWCA 81 Santow JA considered the words “special circumstances” as they appeared in s 88 (1) of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed). That provision enabled the Tribunal to award costs in relating to proceedings before it only if it was satisfied there were “special circumstances warranting an award of costs”. Santow JA set out the Tribunal’s statement of relevant principle at  –  of its reasons and concluded that the Tribunal had erred in its application of those principles in failing to find “special circumstances” explaining at 
60 It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and the doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.
The parties submissions
Mr Burn’s submissions
- We do not intend to repeat each and every submission made by the parties in their extensive written submissions. So far as we are able to discern the broad thrust of the submissions of Mr Burns focus firstly on s 60 (3) (d) (the nature and complexity of the proceedings). He points out that Mr Gaynor sought to adduce fresh evidence on the appeal “in the form of an additional 800 pages of material that was not before DP Hennessy” and this action, he asserts, rendered the appeal complex.
- Secondly, it is submitted, again we infer relying on s 60 (3) (d), that it was Mr Gaynor’s conduct at first instance “that complicated the proceedings and misdirected the Tribunal at first instance as to the scope of the Substantive Proceedings”. It is also asserted that this conduct in some way “unnecessarily disadvantaged the Respondent” and is relevant under s 60 (3) (a).
- Thirdly, and it appears the primary submission of Mr Burns is, that Mr Gaynor’s conduct in the drafting of the Notice of Appeal relying on “complicated and unnecessary grounds”, rather than the identified error relating to Complaints 4-7 is a special circumstance. Thus, it is submitted by failing to properly identify, in a timely manner, the error it is asserted was conceded at the appeal hearing, Mr Burns was denied the opportunity at an early stage to concede the appeal. It is asserted he was further disadvantaged by the late filing of the voluminous material sought to be adduced as fresh evidence on the appeal as this diverted attention away from the “real basis” of the appeal and resulted in Mr Burns incurring unnecessary costs.
- It is finally submitted that Mr Gaynor did not comply with the duty imposed on him under s 36(3) of the Civil and Administrative Tribunal Act. That provision requires parties to co-operate with the Tribunal and to act in accordance with the guiding principle in the legislation namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.
Mr Gaynor’s submissions
- By contrast, in the submissions prepared for Mr Gaynor by his counsel, Mr King, it is submitted that Mr Gaynor did not conduct the proceedings in a way that disadvantaged Mr Burns. It is submitted that “The Deputy President confused the material issues before her”. It is noted that “[t]he Tribunal accepted the Appellant’s submissions as to the appropriate orders to be made”.
- In dealing with the application to adduce fresh evidence, the submissions acknowledge, at , that Mr Gaynor did file a lengthy affidavit “which annexed evidence of each of the many complaints made by Mr Burns against him”. It is asserted this evidence was sought to be adduced to demonstrate “the vexatious point on which the appeal ultimately did not turn”. Later, in the same paragraph, it is noted:
Again, at the hearing of the appeal, both parties focussed on the key issues in the internal appeal and they were conceded or not in issue. Before the Tribunal, if it matters, Mr Gaynor surrendered points pursuant to CAT Act section 36(3).
- Relying on s 60 (3)(c) it is submitted on Mr Gaynor’s behalf that consideration should be given to the fact he was successful in having leave granted and the appeal allowed.
- At  it is asserted that Mr Gaynor was successful in respect of appeal ground 1. That ground, as set out in the Notice of Appeal filed on 30 January 2015, is as follows:
Pursuant to s 80 Civil Procedures Act, the decision is wrong in fact and law.
- We pause to note that s 80 of the Civil and Administrative Tribunal Act (to which we assume Ground 1 in the Notice of Appeal refers) provides in sub-section (2) that an internal appeal may be made in the case of an interlocutory decision of the Tribunal with leave of the Tribunal and in respect of any other decision “as of right on a question of law, or with leave of the Appeal Panel on any other grounds”
- However, attached to the Notice of Appeal is a document headed “Application for Leave to Appeal”. The first ground set out in that document is as follows:
Because the decision of the Presiding Magistrate was in error.
- In dealing with the submission that Mr Balzola’s affidavit or conduct led to the error that occurred it is asserted at :
…Mr Balzola, consistently with his duty to his client who resided in Queensland merely placed material before the Tribunal, and Mr Burns was entitled to object to the whole or parts of that material but did not do so. He consented to its admission. Further nothing said by the Deputy President on the transcript indicates that the Tribunal apparently misconceived the case before committing itself to Judgement several weeks later . Finally, and most importantly the interlocutory application before the Deputy President made it clear that there were 13 complaints referred to as part of the vexation case, as distinct from the point about addressing the 4 (later 3) complaints of Mr Burns to the ADB the subject of the proposed dismissal. Nothing said by Mr Balzola misled the Tribunal which appears to have proceeded, incorrectly, upon a certainty that Mr Burn’s position was strong, and Mr Gaynor was wrong.
- The submissions then canvas matters which Mr Gaynor seeks to agitate on the re-hearing of the interlocutory application relating to jurisdiction. It is unnecessary we refer to those submissions.
- It is submitted that the appeal was conceded but that it was necessary for the Tribunal (the appeal panel) to “examine the nature and character of the 4, later 3, complaints, which also exposed the reasons proceeded on a misconception. It was the latter that was conceded on the appeal”.
- The submissions conclude noting that s 60 (3) (e) favours Mr Gaynor who was successful in the appeal, and that he complied with s 36(3) as he did not press the jurisdictional and constitutional points as he already had “a sufficient concession to win the appeal”.
Section 60 (3)
- We consider it is helpful to examine and discuss the matters raised in the submissions, and the transcript before her Honour in the context of s 60 (3) to determine whether there are special circumstances.
Whether either party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings
- Before commencing our discussion, it is necessary that we point out that although the parties obtained a CD of the transcript of the proceedings before her Honour, they did not obtain the authorised transcript. Mr Burns annexed to his submissions an unauthorised typed transcript of the hearing. We have listened to the CD and satisfied ourselves that the transcript which we quote below accurately reflects the sound recording on the CD.
- There are several matters that are relevant to this sub-section. First, there is no doubt that Mr Gaynor relied on Mr Balzola’s affidavit. In his affidavit Mr Balzola deposed as follows:
- I am the solicitor for the respondent.
- This affidavit is made in support of an Application for Interim Orders dated 8 December 2014.
- I attached and mark with the letter “A” a true and accurate copy of a document titled “Response to Complaints 2014/0766, 2014/0834, 2014/0842” dated 28 November 2014.
- The annexure to Mr Balzola’s affidavit is a 9 page statement of Mr Gaynor. The statement deals in detail with Mr Gaynor’s response to Complaints 4 to 7. That document was of no, or at its highest, of very limited relevance to the application for summarly dismissal of Complaints 1, 2 and 3. No attempt was made by Mr Balzola to draw her Honour’s attention to the fact that the material relied on by Mr Gaynor related to other complaints. It was the only material filed in support of the application until the late filing of the voluminous material sought to be relied on at the hearing itself. During the course of his submissions Mr Balzola made it clear that reliance was placed on all material before her Honour. Mr Balzola said:
We read the whole of the affidavits but we’re highlighting specific examples for you.
- However, Mr Balzola only drew her Honour’s attention to specific parts of the late filed affidavit of Mr Gaynor to demonstrate that Mr Burns’ conduct in lodging complaints with the Board was vexatious. He did not address the issue of why Complaints 1, 2 and 3 themselves were frivolous and vexatious and ought be dismissed summarily.
- In his submissions before her Honour, Mr Burns specifically referred to his Points of Claim. Those points of claim relate only to Complaints 1, 2 and 3. He submitted that the matters raised in the three complaints were serious ones that would be substantiated at the final hearing.
- At the conclusion of his submissions, her Honour pointed out to Mr Burns that:
There’s been no attack on the substance of the complaints themselves. The only submission and only evidence I’ve been taken to is about your motivation. So you needn’t take me to any of these because there’s been nothing said today about the substance.
- Her Honour’s reasons clearly demonstrate in  that she relied in reaching her decision on the response to Complaints 4-7 of Mr Gaynor that was annexed to Mr Balzola’s affidavit. That is, her Honour read that material as she was requested to do by Mr Balzola without qualification or explanation of its relevance to the application before her.
- While we note Mr Gaynor’s submissions refer to Mr Balzola’s duty to his client, they are silent as to Mr Gaynor’s duty to the Tribunal including the duty to address the real issue/s in dispute, and the evidence relevant to those issues. This latter duty is particularly relevant in an interlocutory application heard in a busy duty list as was the case in this matter. The material annexed to Mr Balzola’s affidavit is detailed and required considerable reading time by her Honour. But as we have earlier noted it was irrelevant to the summary dismissal application before her Honour.
- We accept that reliance in an application for summary dismissal on material not relevant to that application, together with the late filing of the extensive material at first instance was likely to have unnecessarily disadvantaged Mr Burns.
- The second relevant matter is the Notice of Appeal and the submissions relied on in the appeal by Mr Gaynor. We accept that the annexure to this document does, in general terms, refer to error (unspecified) by her Honour. The submissions filed in support of the appeal by Mr Gaynor however fail to identify the mistake, which occurred by her Honour basing her reasoning on an examination of the matters raised in the response annexed to Mr Balzola’s affidavit.
- Mr King’s submissions at  and  assert her Honour’s “error” was not identifying that the material the subject of the complaint was material published on Mr Burn’s own web-site. We note that her Honour dealt with this issue at  of her reasons finding it was a factual matter to be determined at the substantive hearing. It was not the basis on which Mr Burns consented to leave being granted to appeal and the appeal being dismissed.
- We also note that Mr King’s submissions on costs explicitly refer to the fact that jurisdictional and constitutional grounds set out in the Notice of Appeal were not relied on in the consent orders made by us.
- The final matter to which we have given weight is the application to adduce further evidence on the appeal. That material, which was served on Mr Burns, was voluminous. We accept it is highly likely that the serving of that material on Mr Burns distracted attention from the real error and there is merit in his submission that he would have earlier conceded the appeal had the true error been identified by Mr Gaynor.
Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings
- While there have been delays in the hearing of the appeal we do not consider those delays can be sheeted home to either party to the proceedings.
- We reject the submission made on behalf of Mr Gaynor that we should dismiss this application on the basis that Mr Burns did not comply with the orders and directions made by us for the filing of submissions in respect of the costs. We accept that time for filing submissions ran from the receipt of the sound recording of the proceedings before her Honour, and that late filing of the submissions by one day, while regrettable, does not warrant the dismissal of the application for costs.
The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in law.
- Mr Gaynor relies on this sub-section noting that he was successful in that leave was granted, the appeal allowed and the hearing for summary dismissal remitted for re-hearing. Ordinarily, in a jurisdiction where costs follow the event, that fact would be a compelling if not determinative matter to take into account. While we give weight to this factor, it is a matter to be balanced with all other matters relevant to our fact finding exercise in respect of “special circumstances”.
The nature and complexity of the proceedings
- We have already extensively discussed matters relevant to this sub-section in our discussion of s 60 (3) (a). We repeat our earlier findings.
Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance
- We do not consider there are any relevant matters to be considered by us under this sub-section.
Whether a party has refused or failed to comply with the duty imposed by section 36 (3)
- Each party submitted the other party had not acted in accordance with the guiding principle. It is submitted on Mr Gaynor’s behalf that he did not extend the appeal hearing by reliance on the jurisdictional and constitutional grounds asserted in the Notice of Appeal.
- Mr Burns asserts that, had Mr Gaynor’s submissions or appeal grounds identified the error at an early point in time, he would have conceded the appeal prior to the hearing. Both these submissions have some substance.
Any other matter the Tribunal considers relevant
- We note that Mr Gaynor’s submissions assert her Honour “misconceived the case before committing [herself] to Judgement several weeks later”. This submission is misleading. Her Honour gave oral reasons for decision at the conclusion of the application on 20 January 2015. Her settled written reasons were published several weeks later after a request was received by the Tribunal. Her Honour did not reserve her decision. Further the submissions state:
Nothing said by Mr Balzola misled the Tribunal, which appears to have proceeded, incorrectly, upon a certainty that Mr Burns’ position was strong, and Mr Gaynor was wrong.
- We reject, insofar as that submission appears to carry an inference that her Honour was in some way biased against Mr Gaynor, this assertion. The inferred assertion lacks any proper basis.
Conclusions – special circumstances
- While there is no dispute that a mistake was made by her Honour in dealing with matters relevant to Complaints 4-7 in determining to dismiss Mr Gaynor’s application for summary dismissal, that error must lay substantially at the feet of Mr Balzola in asking her Honour to read his affidavit which, in reality was to put before her Honour Mr Gaynor’s attack on Complaints 4-7. The consequent error led to the application for leave to appeal.
- More significantly, the mistake made by her Honour was not identified in the Notice of Appeal or the submissions filed on Mr Gaynor’s behalf. The correlation between the response document and her Honour’s reasons was first exposed in the submissions made by Ms Nomchong and highlighted in the helpful chronology she prepared. It was then readily admitted by Mr Burns that leave should be granted, the appeal allowed and the matter remitted for re-hearing. It was only after Mr Burns’ position was enunciated before the Tribunal that instructions were obtained by Mr King and the appeal allowed.
- We are satisfied these two matters constitute “special circumstances”.
Should the Tribunal make a costs order, and if so on what terms?
- We note the power to award costs under s 60 (2) is discretionary, and such an order can only be made if the Tribunal finds, as we have, that there are special circumstances.
- As presently in force, the Suitors Fund Act 1951 (NSW) has no application in this Tribunal so no resort can be made to under that Act for compensation as may occur in civil proceedings in superior courts.
- Further, it is the plain intent of the legislature that, for the most part, parties should each bear their own costs with the aim of facilitating affordable litigation. However, our discussion below indicates a making of a costs order is appropriate in this case.
- We are cognisant in this case of the following factors:
- The material put before the Tribunal by Mr Balzola was the prime factor in her Honour mistakenly relying on an irrelevant document.
- Mr Burns did not discern the error during the hearing and object to the material being read. But he was met with having to deal with a voluminous affidavit only filed shortly prior to the hearing. In these circumstances his failure to object is unsurprising.
- Mr Gaynor’s Notice of Appeal together with its annexures and submissions on the appeal failed to identify the error which we are satisfied ultimately led to the consent orders allowing the appeal. Further voluminous material sought to be adduced as fresh evidence addressed other issues not before her Honour or relevant to the identified error.
- The appeal was readily conceded once Mr Burns’ senior counsel read the application for summary dismissal, the material before her Honour, the reasons for decision, and identified the error.
- Weighing and balancing these competing matters, and considering the policy objective of the legislation, we consider the facts warranting the making of the costs order outweigh the matter raised by Mr Gaynor, and that Mr Burns should be entitled to costs of the appeal including the preparation of the submissions on costs.
Should the costs be payable forthwith?
- Mr Burns seeks an order that costs should be payable “forthwith”. An order in those terms is opposed by Mr Gaynor.
- Rule 42.7(2) of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR) provides that, unless the court otherwise orders, costs awarded in respect of an interlocutory application do not become payable until the conclusion of the proceedings. The underlying policy considerations reflected in this rule are self-evident. But the UCPR do not apply to the Tribunal. Thus, the Tribunal may, in appropriate circumstances, in the exercise of its discretion, order costs shall be payable prior to the conclusion of proceedings. In doing so, it appears to us the same policy considerations that underlie Rule 42.7 and the authorities dealing with the rule are relevant matters to take into account. In Fiduciary Limited v Moriningstar Research Pty Ltd  NSWSC 432 at -  Barrett J, in dealing with a similar provision in the Supreme Court Rules then in force, identified factors relevant in respect of making an order for costs of interlocutory proceedings to be payable forthwith. The identified factors are:
- The matter involves the determination of a separately identified matter.
- Unreasonable conduct by the party against whom costs have been awarded.
- Anticipated lengthy delay before the proceedings will be concluded
- We are satisfied in this case, having regard to our findings, that the first two matters identified by Barrett J are relevant to the exercise of our discretion. Accordingly, we find that the costs in this matter should be paid within a defined period and not at the conclusion of the proceedings.
- While we accept we could make an order for a specific sum to be paid within a specified time period, there is simply no evidence before us to enable us to make an informed assessment of a proper quantum of costs to be paid. Rather, we propose to provide the parties an opportunity to reach agreement on costs within 28 days of publication of these reasons, failing which costs may be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) Part 4.3 Div 7 as provided in s 60 (4) of the Civil and Administrative Tribunal Act. The costs shall be payable 14 days after agreement or assessment.
- The appellant shall pay the costs of and incidental to the appeal of the respondent including the submissions on costs as agreed and failing agreement within 28 days of the date of this order as assessed under Part 4.3, Div 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).
- The costs agreed or assessed under Order 1 of these orders shall be payable within 14 days of agreement or assessment.
Decision last updated: 23 July 2015
Latrobe City Council has labelled its inclusion in a discrimination complaint against controversial councillor Christine Sindt as inappropriate and wrong.
The Council’s asked anti-discrimination campaigner Garry Burns to withdraw his complaint against it, over social media comments made by Ms Sindt.
Mr Burns included the Council as a respondent in a complaint he filed with the New South Wales Anti-Discrimination Board.
Latrobe Chief Executive Gary Van Driel has asked Mr Burns to leave the shire out of it, because the comments aren’t reflective of council’s views.
“I assure you that [we] condemn views such as those contained in the post,and the content does not reflect the views of Council as a whole,” Mr Van Driel wrote in a letter received by Mr Burns yesterday.
“While Cr Sindt’s Facebook page referred to her position as a Councillor, the page was not established by Council. Nor did Council have direct access or control over the content posted.”
But Mr Burns has refused to back down from his complaint that includes the Council.
“If these statements were published under her personal account, different story,” he said.
“Before her page was removed, there was council issues on there. You can’t pick and choose when she represents council.”
Mr Burns took the letter as a polite threat to back off.
“They’re concerned it’ll impact them, but they need to understand it’s a very serious matter.”
Republished – abc.net.au
The Latrobe City Council in south-east Victoria
The Latrobe City Council in south-east Victoria has asked an anti-discrimination campaigner to withdraw his complaint against it, over one of its councillor’s social media comments.
Garry Burns has made a complaint to the New South Wales Anti-Discrimination Board against Cr Christine Sindt and has also included the council as a respondent.
In a letter, seen by the ABC, Latrobe’s chief executive Gary Van Driel asks Mr Burns to leave the shire out of the complaint because the comments do not reflect the council’s views.
Mr Burns said he saw it as a threat but the complaint had not yet been accepted for investigation.
“I’ve never had any respondent, either joint or otherwise, send me a letter prior to the complaint being accepted by the president of the NSW Anti-Discrimination Board asking me to withdraw them as a jointer to any potential proceedings,” he said.
“This matter has not even been accepted by the president for investigation at this point in time.
“The president still has this and it’s not up to him to make demands that I withdraw the complaint.
“I see this letter as a threat. It’s not going to be withdrawn and I will pursue it through the NSW Anti-Discrimination Board.”
Mr Van Driel has been contacted for a response.
Dear Minister Hutchins
Minister for Local Government in Victoria ,
Cr Sindt undeterred
Latrobe City Councillor Christine Sindt says she does not intend to remove or retract a controversial post on her councillor Facebook page regarding same-sex marriage.
She briefly deactivated her official councillor Facebook page, but it returned last week and the comments on same-sex marriage remained.
Cr Sindt said she would not take down the post because “most things are subject to interpretation”.
“People have contacted me regarding the interpretation of my comment and then we have had conversations and all meetings have been positive, to date,” Cr Sindt said.
She confirmed she had received correspondence from a lawyer for Federal Member for Gippsland Darren Chester.
Earlier this month Mr Chester said his lawyer had formally written to Cr Sindt requesting a retraction and unreserved apology regarding her Facebook comments.
The contents of the Facebook post, which cannot be reported for legal reasons, included a personal attack on Mr Chester after he declared he would support legislation to legalise same-sex marriage.
Sydney-based anti-discrimination campaigner Garry Burns has lodged a complaint with the Anti-Discrimination Board of New South Wales over the 11 June post, alleging it incited hatred against homosexual men.
The controversial south-east Victorian based councillor criticised federal MP Darren Chester after he announced his support of same-sex marriage.
Lawyers for Mr Chester have asked Cr Sindt to apologise and retract what they describe as divisive, offensive and defamatory comments.
A vilification complaint has also been lodged against Cr Sindt by a New South Wales anti-discrimination campaigner.
A panel will decide if Cr Sindt has breached the councillor code of conduct by posting anti-Islamic material on Facebook.
She said threats from lawyers would not force her to censor her public comments.
“Same-sex marriage has a lot of, there’s a lot of robust debate around same-sex marriage and this morning I received some private and confidential correspondence from a lawyer,” she said.
“Will I think about what I say and do to be sure that the thought police are happy with it?
“I do not comply with the thought police. I am a free-thinking person.”
Sindt agrees to be more ‘inclusive’
Latrobe City Councillor Christine Sindt says discussions with members of the community have made her aware her Facebook posts opposing same sex marriage “may have triggered intense emotion” for people.
“In relation to same sex marriage, I have met with members of the community, and have become aware that my Facebook posts opposing same sex marriage may have triggered intense emotion, based on their own personal experiences,” Cr Sindt told The Express in a statement on Friday.
“Discussions are continuing, for which there are clearly no immediate short-term solutions.
“We have agreed that same sex marriage is not the solution to far deeper social problems.”
Cr Sindt said she had “agreed to disagree” with people on the issue of same sex marriage, and “agreed that we need to be an inclusive, supportive Latrobe City community”.
Her controversial Facebook comments drew interstate ire last week, with an outspoken, Sydney-based gay rights activist lodging a formal complaint with the Anti-Discrimination Board of New South Wales.
Garry Burns has alleged an 11 June statement on Cr Sindt’s offcial councillor Facebook page incited hatred against homosexual men.
The contents of the Facebook post cannot be reported for legal reasons.
Mr Burns said he believed Cr Sindt’s statement was unlawful because it “has a capacity or effect of inciting hatred towards, or serious contempt or serious ridicule of homosexual men on the grounds of their homosexuality”.
“People in high office have responsibility, they’re people in powerful positions and they should understand the impact of their statement particularly on gay and lesbian teenagers, because these kinds of statements do cause harm,” he said.
Cr Sindt’s Facebook post included a personal attack on Member for Gippsland Darren Chester after he declared he would support legislation to legalise same-sex marriage.
A lawyer for Mr Chester sent a letter to Cr Sindt requesting she retract the statement and unreservedly apologise.
From Thursday morning, Cr Sindt’s councillor Facebook page appeared to have been taken down.
Cr Sindt said she had not yet received any legal correspondence about her councillor Facebook page and she had voluntarily deactivated it.
She said she did not know Garry Burns.
“I have met with members of the local community and those whom I have met do not appear to be as concerned as possibly Mr Burns may be and I look forward to receiving his correspondence,” Cr Sindt said.
Latrobe city councillor Christine Sindt facing vilification complaint over same-sex marriage Facebook comments
An anti-discrimination campaigner has lodged a vilification complaint against south-east Victorian based Latrobe city councillor, Christine Sindt.
Cr Sindt made comments on her Facebook page criticising federal MP Darren Chester for his support of same-sex marriage.
The exact comments cannot be reported for legal reasons.
New South Wales based Garry Burns campaigns against commentators and high-profile people who link homosexuality with paedophilia.
He said the statement that Cr Sindt published could incite ridicule, contempt or hatred against homosexual men.
“We are all part of the Australian family regardless of those differences, whether we’re gay, straight, bi, tranny, intersex, we all should be involved in the gig, and this woman seriously needs to reflect on what she said because those statements are simply unacceptable in 2015,” he said.
He said Cr Sindt needed to explain her comments and apologise.
“Ms Sindt is a person in a powerful position,” he said.
“She sought to represent the people, her local constituency, on council. She cannot be running around stating those kinds of things that she’s published because those things are harmful.”
Cr Sindt’s Facebook page has been removed after threats of legal action by Mr Chester.
Councillor draws wrath of Local Government Minister Natalie Hutchins
The state Minister for Local Government, Natalie Hutchins, has criticised Cr Sindt over her recent Facebook comments.
In a strongly worded statement, Ms Hutchins said Cr Sindt had failed to abide by the councillor code of conduct a number of times.
Her response comes before an independent panel meets to examine whether Cr Sindt has done just that.
Ms Hutchins said she did not have the power to sack an individual councillor but said Cr Sindt needed to understand the responsibilities that came with her role.
Latrobe city councillor Kellie O’Callghan has taken to social media, calling for a reasonable debate.
“I think the rules are pretty clear,” she said.
“I don’t think there’s any confusion about it but when people don’t articulate clearly the purpose of their statement and the reasoning and the logic behind why they’re making comment then it starts to get very messy and I think that’s what we’re seeing in the public domain at the moment.”
The ABC has sought comment from Cr Sindt.
For a god fearing religious man, I was shocked to hear on last nights Q and A show on the ABC that I was responsible for Bernard Gaynor’s sacking from the Australian Defense Forces. This is an outrageous lie made by you, how dare you blame me for Gaynor’s bigoted ideals which ultimately became the now sacked Major’s undoing.
I expect a full apology from you..
By MATT NEAL May 12, 2015, “THE STANDARD“
FORMER political candidate and Lake Bolac grandmother Tess Corbett is refusing to acknowledge ongoing Supreme Court activity over comments she made vilifying homosexuals, according to the man taking legal action against her.
After being found guilty in the NSW Civil and Administrative Tribunal and losing a subsequent appeal, Ms Corbett was ordered to publish an apology in the Sydney Morning Herald for the comments she made in 2013 while running as the Wannon candidate for Katter’s Australian Party that equated homosexuality with paedophilia.
But Ms Corbett has failed to publish the apology within the set time period, leading anti-discrimination campaigner Garry Burns to take the matter to the Supreme Court of NSW.
Mr Burns said a direction hearing was held in the Supreme Court on April 27 and neither Ms Corbett nor her legal representatives attended.
He said Ms Corbett had received letters from Mr Burns’ legal team and returned them unopened.
“She seems to have complete contempt for the process,” Mr Burns said.
“She should at least respond to my legal team or me and explain herself and then we can move forward — completely ignoring it will not make the matter go away.”
He said the longer it drew out, the worse the result was becoming for Ms Corbett.
While Mr Burns’ legal action in the past had not incurred costs, he said the Supreme Court activity was expensive and would force him to seek costs.
“I will pursue Ms Corbett until she complies with the orders,” Mr Burns said.
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“(The apology) must reflect my belief in the public interest in defending homosexual men and women’s rights to freedom from discrimination and vilification.
Ms Corbett has been ordered by the tribunal to “apologise for any hurt that her comments may have caused to the homosexual community of Australia and she will make that public apology”.
Another direction hearing is expected to take place in the Supreme Court of New South Wales on June 15
I wish your family well. Tony, On 8/21/15, Geoffrey McKee wrote: > Luke > > This is your father here. > > You are causing other people a lot of flack and targeting through your > roping others in to your vendetta with the gay activist > > Hereward is very stressed from a law suit from OTO as a result of publishing > your comments on his website, > > Your wife and daughter has been targeted as a result of you sending out your > attacks using her profile > > I am in trouble as you know > > Sunol and Gaynor have copied complaints from Burns as a result of your > comments that are generally filled with rude, crude and unattractive > language that the authorities interpret as hate speech > > Also you are giving all this ammunition to the enemy so that they can tar > those you are associated with in Australia with the same Brush > > Your cause / to wind back homosexual propaganda / is a sound cause but you > need training in how to communicate without causing pain to others close to > you > > Balzola is very unhappy with your spam that he does not have. Time to read > and he said barrister Peter King has told you to stop sending spam that > gives all your information to the enemy and makes you a target for getting > more arrest warrants for harassing and menacing emails to authorities, > containing defamatory comments and insults > > Learn from Bernard Gaynor how to write > > You must stop annoying people with unwanted emails, that are disturbing > > > - Geoff > > > > Sent from my iPhone > >> On 20 Aug 2015, at 11:08 pm, "Tony Aster" wrote: >> >> VGB is not a vehicle for one person's feud with any other person. >> Please do this on your own blog, not on VGB. >> This has gone on too long and it will only make Burns and co target us. >> I don't want crossfire. >> >> >>> On 8/19/15, Luke McKee wrote: >>> i backed it up when it was there and complained to authorities who >>> witnessed it.... in future just unapprove the comments but don't delete >>> them if they are really really n bad taste. >>> >>> >>>> On 19 August 2015 at 11:39, Luke McKee <email@example.com> wrote: >>>> >>>> Death threats against my wife in comments were removed from the VGB >>>> blog. >>>> >>>> The police and my father needed that. Damn garry burns will be happy >>>> with >>>> whoever deletes it. >>>> >>>> I sent screencap of them to ADB. In future please do not delete >>>> evidence >>>> of Garry and his associates crime so law enforcement can use what these >>>> pricks added to the wordpress database to jail them. >>>> >>>> It's filthy but it's a means to an end to get these #@#$@# where they >>>> belong in jail. Garry Burns owes his freedom to ever supports his cause >>>> for >>>> the sake of removing cuss words. We have to get our hands dirty now to >>>> deal >>>> with this filth. >>>> >>>> Cheers, >>>> >>>> Luke >>> >
BERNARD GAYNOR : “ SAME SEX MARRIAGE IS ABOUT 2 MEN WALLOWING IN THEIR OWN EXCREMENT, THAT’S NOT SEX “
FOR IMMEDIATE RELEASE
14 November 2016
NSW Anti-Discrimination Campaigner and public interest litigant Garry Burns has lodged a number of complaint’s under the NSW Anti-Vilification Provisions of the ADA 1977 ( NSW ) against QLD resident Bernard Gaynor over a number of statement’s he published on the internet that Mr Burns alleged were harmful to homosexual Australians.
“ SAME SEX MARRIAGE IS ABOUT 2 MEN WALLOWING IN THEIR OWN EXCREMENT, THAT’S NOT SEX ”, RETWEETED Mr Gaynor.
“ How could that statement concern serious questions on enrichment toward the Great Conversation in the following ideas claimed by Mr Gaynor as quoted in one of his recent Defence’s filed. ( sic )
a. Morality ;
b. Public policy on political freedom ;
c. Religious freedom ;
d. The implied constitutional freedom of political opinion ;
e. The Public interest ;
f. Threads posed to those freedoms and ideas ;
g. Open and frank participation in the Great Conversations that these issues pertain to.
His above statement goes a step further because it clearly vilifies male homosexuals based on their homosexuality , “ said Mr Burns.
The NSW Supreme Court of Appeal will hear an Application lodged by Mr Gaynor on Wednesday 30 November and and Thursday the 1 December 2016 at 10am challenging jurisdiction and constitution.
The court will determine and hear the proceeding involving the matter of an Applicant and Respondent living in different states in relation to the ADA 1977 ( NSW ).
“ Basically what Mr Gaynor is legislating for is a right to sit on his computer somewhere in Queensland and publish material on his website / Facebook pernicious to homosexual Australians claiming that I and others who share my characteristic ( homosexuals ) don’t have jurisdiction to lodge a homosexuality vilification complaint against him under any state or territory discrimination or equal opportunity provision because the public act according to Mr Gaynor occurred in QLD and not NSW.
Regarding the public act, the Dow Jones decision states, regarding the internet, an act occurs where the content is downloaded.
The internet crosses all state and territory boundaries and any jurisdictional argument put forward by Mr Gaynor in his application must fail.
This case for me involves a very important question of law to be explored and I will fight for it “ said Mr Burns.