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” Mr GayNor this latest stunt will fail and I will get a merits hearing against you in the NSW Local Court.”

Mr GayNor is seeking prohibition to prevent a person lodging a complaint against him or from being heard in the local court will fail.

Image result for bernard gaynor

Bernard GayNor

The following is an extract from Mr GayNor’s Blog –

One month ago I announced that I would be taking legal action against the ‘Anti-Discrimination Thought Police’ in New South Wales for the ongoing and unlawful persecution I have faced for my views on marriage, family and morality.

Since then I have been working non-stop to prepare that legal case.

And late last week I filed a summons in the New South Wales Supreme Court seeking rulings against the President of the New South Wales Anti-Discrimination Board (ADB), President of the New South Wales Civil and Administrative Tribunal (NCAT) and the New South Wales Local Court.

I am seeking declarations that the President of the ADB, President of NCAT and the Local Court have no power to hear complaints against me and prohibition orders preventing any further action.

I have been forced to take this action after continued attempts to hear complaints against me, despite a unanimous High Court ruling in April that it was unconstitutional to do so.This shows that the ‘Thought Police’ are prepared to break the law to enforce their radical worldview on all Australians.

They are menace to society and freedom and should be abolished.

I must admit that I have been increasingly stressed after four years of unlawful litigation and persecution. However, I am very proud to have taken this latest step.

This will be a landmark case and it will put the ‘anti-discrimination industry’ on trial for the first time in Australian history. In essence, we are now on the attack and we need to continue.

 

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Anti-Islam Solicitor Robert Remo Balzola accused of misappropriating anti-mosque funds is the solicitor acting for Anti-Homosexual Bernard Gaynor

By Angus Thompson  

A Sydney lawyer who has been involved in multiple high-profile anti-mosque campaigns has been accused of misappropriating money he held in trust for one group of campaigners in order to prop up his own firm.

But solicitor Robert Balzola has been allowed to keep practising after a bid by the Council of the NSW Law Society to have him suspended collapsed due to a legal technicality.

Solicitor Robert Balzola.
Solicitor Robert Balzola.

Photo: Facebook

The Law Society, the peak body for solicitors, resolved on July 20, 2017, to suspend Mr Balzola immediately, alleging the results of a probe into his finances showed “a deliberate practice of using trust money … to ensure sufficient funds were available in the general account to pay Mr Balzola’s salary and meet the liabilities of the practice”.
In issuing the claims against Mr Balzola, the body gave him an opportunity to explain why it shouldn’t suspend him until June 30 this year.

Mr Balzola launched NSW Supreme Court proceedings to appeal against the decision, initially achieving a stay of the immediate suspension that would allow him to practise while he fought the claims.

The Law Society audit was sparked by a complaint from Julie Hoskin, a Bendigo community member who had engaged Mr Balzola, a prominent Christian, to help her and others oppose the construction of a mosque in the Victorian regional city.

Mr Balzola has also helped similar campaigns in Sydney and Canberra.
Ms Hoskin, who was also being represented by Mr Balzola in another matter, claimed in early 2016 that the trust money deposited by her and other community campaigners was being held in the firm’s general account without her permission, and that there were many discrepancies in the “confusing” account statements he issued.
“Some are major and show that many thousands of dollars are missing,” Ms Hoskin allegedly said.

According to investigator Simon Ward, Ms Hoskin said Mr Balzola had offered to keep the money in trust after several banks refused to hold accounts for the campaigners’ legal fight.

Mr Ward alleged Mr Balzola manipulated trust accounting records to avoid detection by “erroneously issuing receipts from his trust account for funds that were never received”.

“Trust money deposited to the general account was regularly used in meeting the general liabilities of the practice,” Mr Ward claimed.
The accusations were published in a June 19, 2017, Law Society report on the investigation.
Mr Balzola’s solicitor, Jennifer Shaw, attached the report, together with his response to the claims -dated July 18, 2017 – to an affidavit tendered to the court.

Ms Shaw claimed on behalf of Mr Balzola that the breaches were neither deliberate nor dishonest.

She said the allegations largely concerned “administrative errors or oversights” that occurred around 2013 and 2014 and “at a time when the practice didn’t have sufficient systems as he has implemented today”.

Ms Shaw said cases in which Mr Balzola used trust money to pay for office expenses were “typically only the unintended consequence of the practitioner failing to appreciate the presence of trust funds in the office account”.
“All the transactions identified in the report as ‘misappropriations’ or otherwise being dishonest have an understandable, innocent explanation,” she said in Mr Balzola’s response.
Ms Shaw said Mr Balzola’s trust account had been fully reconciled and his accounting systems had been updated, and that the matter didn’t warrant suspension or a manager being appointed to the practice.

In relation to Ms Hoskin’s complaint, Ms Shaw said it had been difficult for her client to deal with the large number of small contributions from members of the public.

On August 4 last year, the case went before Justice Des Fagan, who ordered Mr Balzola to serve evidence on which he relied to overturn the suspension before the next hearing date, urging both parties to move forward quickly.

The proceedings were then repeatedly adjourned at the Law Society’s request.
On June 4 this year, Mr Balzola’s lawyers argued before Justice David Davies that the 56-day period the Law Society had to vary the immediate suspension from the time it notified him had expired.
The Law Society claimed that that 56-day period didn’t run while the immediate suspension was placed on hold by the stay.

The court heard that, because of the stay, the body did nothing to vary the temporary ban.

“This was because the Law Society is a model litigant and did not want to do anything which might lead to Mr Balzola claiming an abuse of process whilst the stay was in place,” Justice Davies said.

In finding for Mr Balzola, Justice Davies said it was “unfortunate that so much time has elapsed since the stay was put in place and the 56-day period expired”.
“No explanation has been offered, as I have said, about why steps were not taken more promptly to have the proceedings brought on for hearing,” he said in his June 8 judgment.
Justice Davies awarded costs for part of the proceedings to Mr Balzola.

angusthompson@fairfaxmedia.com.au

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Archbishop Philip Wilson sentenced for concealing child sex abuse

Archbishop Philip Wilson leaves a court after his conviction in MayStory (bbc.com)
Image captionArchbishop Philip Wilson was convicted in May

A Catholic archbishop in Australia has been given a maximum sentence of 12 months in detention for concealing child sexual abuse in the 1970s.

Philip Wilson, now archbishop of Adelaide, is the most senior Catholic globally to be convicted of the crime.

He was found guilty by a court last month of covering up abuse by a paedophile priest in New South Wales.

On Tuesday, the court ordered Wilson to be assessed for “home detention” – meaning he will probably avoid jail.

Magistrate Robert Stone said the senior clergyman had shown “no remorse or contrition”. He will be eligible for parole after six months.

Wilson has not resigned as archbishop, despite relinquishing his duties in the wake of his conviction.

In May, a court found he had failed to report his colleague James Patrick Fletcher’s abuse of altar boys to police.

Media caption‘Wilson ignored my story for decades’

Wilson, then a junior priest in the Maitland region, had dismissed young victims in a bid to protect the Church’s reputation, Magistrate Stone ruled.

Fletcher was convicted of nine child sexual abuse charges in 2004, and died in jail two years later.

What did the court hear?

During his trial, Wilson denied that he had known about Fletcher’s actions.

The archbishop’s lawyers had sought to have the case thrown out on four occasions, citing the 67-year-old’s diagnosis with Alzheimer’s disease.

One of his victims, former altar boy Peter Creigh, told the court he had described the abuse to Wilson in detail in 1976, five years after it took place.

Magistrate Stone rejected Wilson’s claims that he had no memory of the conversation, and said he had found Mr Creigh to be a reliable witness.

Another victim, who cannot be named, testified that Wilson had told him he was telling lies, and to recite 10 Hail Mary prayers as punishment.

What has been the reaction?

Survivors of abuse said they had mixed feelings about the sentence. One, Peter Gogarty, said it was “probably letting [Wilson] off a little bit too lightly”.

However, Mr Gogarty said: “We have made history here in Australia.

“The highest-ranking church official to ever be brought to account [for] what we know was a worldwide, systematic abuse of children and the concealment of that abuse.”

Mr Creigh did not attend the hearing on Tuesday due to health reasons.

But earlier he told the Adelaide Advertiser that “irrespective of the sentencing, the victory was had” in May when Wilson was convicted.

The Australian Catholic Bishops Conference said it hoped that the sentence would “bring some sense of peace” to Fletcher’s victims. It added that the Church had made “substantial changes” to prevent abuse and its concealment.


Detention, but no resignation

Hywel Griffith, BBC News, Sydney

Inside the crowded courtroom, survivors and their families listened studiously as the magistrate delivered his decision.

There were gasps as Magistrate Stone said only a period of imprisonment would suffice, then disappointment at the prospect of home detention.

The sentence is significant – it means a senior Church figure could be made to wear an electronic tag, no longer free to go where he wants.

But what angers some victims is that the Church has refused to disown Philip Wilson, and that he holds on to his role as one of its leaders.


How has Australia been handling such cases?

In 2012, then Prime Minister Julia Gillard set up a royal commission, the country’s highest form of public inquiry, to look into institutional responses to child sexual abuse.

By the time it had published its final report in December last year, it had handled 42,000 calls and referred more than 2,500 cases to the authorities.

It said institutions including churches, schools and sports clubs had “seriously failed” to protect children. Catholic institutions came in for particular criticism.

Peter Creigh hugging two female family members outside courtImage copyrightEPA
Image captionMr Creigh reacts after Wilson was convicted in May

Prime Minister Malcolm Turnbull said “a national tragedy” had been exposed.

How does this compare to convictions elsewhere?

The first cases of molestation by priests came to light in the 1980s. In the 1990s, revelations began of widespread abuse in Ireland, with cases spreading to more than a dozen countries this century.

Ireland, the US and Australia have carried out national inquiries, and there have been cover-up scandals such as in the Archdiocese of Boston in the US.

Although there have been convictions of priests for sexual abuse, in many cases accused clergymen were either moved or retired by their Church, with financial settlements agreed in some cases, particularly in the US.

Victims rights groups have complained the convictions do not often extend beyond priest level, with few senior figures brought to account, although a number have left their positions over their actions in sexual abuse cases, including Cardinal Bernard Law in Boston.

One of the most high-profile recent cases has been in Chile. All of its 34 Catholic bishops offered to resign. Pope Francis had handed them a 10-page document accusing Chile’s Church hierarchy of negligence in sexual abuse cases.

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Child sexual abuse and the Catholic Church: What you need to know

Priests pray in front of St Peter's Basilica in St. Peter's Square as cardinals prepare to vote for a new pope on March 9, 2013 in Vatican City, Vatican

(Story – bbc.com)

From Australian country towns, to schools in Ireland and cities across the US, the Catholic Church has faced an avalanche of child sexual abuse accusations in the last few decades.

Recent high-profile cases and harrowing testimony given to public inquiries have kept the issue in the headlines.

Meanwhile alleged cover-ups continue to dog the Church, and victims groups say the Vatican has not done nearly enough to right its wrongs.

Here’s what you need to know.

How did this all come to light?

Although some accusations date back to the 1950s, molestation by priests was first given significant media attention in the 1980s, in the US and Canada.

In the 1990s, the issue began to grow, with stories emerging in Argentina, Australia and elsewhere. In 1995, the Archbishop of Vienna, Austria, stepped down amid sexual abuse allegations, rocking the church there.

Also in that decade, revelations began of widespread historical abuse in Ireland. By the early 2000s, Church sexual abuse was a major global story.

In the US, determined reporting by the Boston Globe newspaper (as captured in the 2015 film Spotlight) exposed widespread abuse and how paedophile priests were moved around by Church leaders instead of being held accountable. It prompted people to come forward across the US and around the world.

A Church-commissioned report in 2004 said more than 4,000 US Roman Catholic priests had faced sexual abuse allegations in the last 50 years, in cases involving more than 10,000 children – mostly boys.

A 2009 report found that sexual and psychological abuse was “endemic” in Catholic-run industrial schools and orphanages in Ireland for most of the 20th Century.

A five-year Australian inquiry in 2017 found that “tens of thousands of children” were sexually abused in Australian institutions over decades, including churches, schools and sports clubs.

What are some recent cases?

How has the Church responded?

Pope Francis called for “decisive action” when he was elected in 2013, but critics say he has not done enough to hold to account bishops who allegedly covered up abuse.

His predecessor, Pope Benedict, had been accused of failing to protect children and suppressing investigations – allegations he denied.

Before him, under Pope John Paul II, Cardinal Bernard Law, the disgraced figure at the centre of the Boston scandal, was given a symbolic role in Rome close to the Vatican and allowed to maintain his rank, despite outrage from victims.

Between 2000 and 2010 several huge payouts were made by US dioceses to settle with victims.

In 2011, Pope Benedict told bishops, in new guidelines, that they had to promptly report any suspected cases to local police. Previously, all cases were supposed to be referred to Rome.

Under Francis, a special panel has been set up to deal with the issue but it has faced setbacks, including high-level resignations. In 2017, Marie Collins, an Irish survivor of abuse, left the group, citing “stumbling blocks and hindrances”.

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Charlie Pickering skewers Catholic Church on TV

Rohan Smith@ro_smith news.com.au     JUNE 21, 201810:52AM

AN ANGRY Charlie Pickering has taken aim at the Catholic Church.

The host of The Weekly took exception to comments made by the acting Archbishop of Adelaide Greg O’Kelly this week, who said, the church would not abide by legislation forcing priests to report confessions of child abuse to police.

“Politicians can change the law, but we can’t change the nature of the confessional, which is a sacred encounter between a penitent and someone seeking forgiveness and a priest representing Christ,” Bishop O’Kelly said.

Pickering told viewers on Wednesday night that the church was “protecting predators in God’s name”.

“In response to the royal commission … here we have a religious organisation saying publicly, with a straight face, that it considers itself above the law,” he said.

“Now, Greg … is the acting Archbishop because his predecessor was convicted of covering up child abuse. (He) said the seal of confession is sacred. Well, it is a sacred seal the church has used to protect serial child abusers who landed them in the royal commission in the first place.

“Like Rockhampton priest Father McArdle who confessed 1500 times to molesting children to 30 different priests over a 25-year period. He was forgiven 1500 times and told merely to go home and pray.

“That, according to the church, is sacred and none of our business.”

He slammed the Catholic Church for abiding by some laws but not others.

“The church is fine with laws that protect it from paying tax but refuses to abide a law designed to protect innocent children from abuse,” Pickering said.

Pickering said he could not say what he really wanted to say “because I am subject to the law (but) “maybe I should swing by his confessional because apparently there I can get away with anything”.

Under the new law, set to take effect in October, priests who hear confessions about child abuse will have a legal obligation to report the matter to police.

But Bishop O’Kelly told ABC Radio Adelaide on Friday that “it doesn’t affect us”.

The law forms part of the South Australian government’s response to the Royal Commission into Institutional Responses to Child Sex Abuse, released by Attorney-General Vickie Chapman last Tuesday.

It was widely publicised by Attorney-General Chapman last month when Archbishop Philip Wilson stood aside amid public outcry after his conviction for covering up child sexual abuse.

Canon (Church) law lays down that “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason”.

The penalty for violating the seal of confessional is excommunication, as every priest knows. The law also stipulates that anyone else who happens to hear or overhear someone confessing sacramentally is also obliged to observe the seal.

Not reporting abuse will carry a maximum $10,000 fine, and brings expectations of priests in line with those of social workers, teachers, medical professionals and others in positions of authority.

Bishop Greg O'Kelly. Picture: Keryn Stevens

Bishop Greg O’Kelly. Picture: Keryn Stevens Source:News Limited

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Your Support Is Needed – Fund Defamation Case

Help Garry Burns fund Defamation Case

My name is Garry Burns, an Australian Anti-Discrimination Campaigner who runs matters in the public interest to protect homosexuals and other minority citizens from public acts of unlawful vilification and discrimination.

I have commenced defamation proceedings against Australian Anti-Homosexual, Anti- Islam Conservative Christian Blogger Bernard Gaynor over his publishing of third party comments on his Facebook Wall that suggest or imply that I by the name of Garry Burns actively support the practice of paedophilia, to warrant public condemnation and that I and other homosexuals condone serious sexual crimes against children. I allege Mr Gaynor is the primary publisher of those comments published on a page of which he is the moderator.

I am raising funds to engage legal Counsel to run the matter at hearing.

The homosexual community will benefit by this litigation because the court proceedings will draw attention to the fact that homosexuals are not criminals who molest underage Australian children.
Any assistance no matter how big or small is greatly appreciated.

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Balzola v Council of the Law Society of New South Wales [2018] NSWSC 849

NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
Balzola v Council of the Law Society of New South Wales [2018] NSWSC 849
Hearing dates: 4 June 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) I declare that, in the events which have happened, the defendant’s immediate suspension of the plaintiff’s practising certificate under s 77 of the Legal Profession Uniform Law (NSW) on 20 July 2017 has expired.

(2) No order as to costs of the motion filed 18 May 2018 to the intent that each of the parties pays his and its own costs.

 

Catchwords:
OCCUPATIONS – legal practitioners – discipline – suspension of practising certificate – interim or immediate suspension under s 77 of the Legal Profession Uniform Law (NSW) – where stay granted – no suspension under s 82 within 56 days – effect of the stay – whether stay obviated need for Law Society to make a decision under s 82 – whether interim suspension lapsed
Legislation Cited:
Legal Profession Uniform Law (NSW) ss 77, 79, 82, 83, 84, 100
Cases Cited:
Berger v Council of the Law Society of NSW [2013] NSWSC 1080
Russo v Legal Services Commissioner [2016] NSWCA 95
Texts Cited:
Nil
Category:
Procedural and other rulings
Parties:
Robert Remo Balzola (Plaintiff)
Council of the Law Society of New South Wales (Defendant)
Representation:
Counsel:
N Beaumont SC & L Johnston (Plaintiff)
K Morgan SC & S Palaniappan (Defendant)

Solicitors:
Eakin McCaffery Cox (Plaintiff)
Law Society of NSW (Defendant) 

File Number(s):
2017/228544
Publication restriction:
Nil

JUDGMENT

  1. On 20 July 2017 the Council of the Law Society of New South Wales resolved as follows:

A.   …

B.   FURTHER RESOLVED that pursuant to s.266 of the Legal Profession

Uniform Law (NSW) [the Uniform Law], the following complaints are made against Robert Remo Balzola [MN 25878] [the Solicitor]:

1.   The Solicitor breached sections 254, 255, 260, 263 and 264 of the Legal Profession Act, 2004.

2.   The Solicitor breached sections 137, 138, 146, 147 and 154 of the Legal Profession Uniform Law (NSW),

3.   The Solicitor misappropriated trust funds.

4.   The Solicitor caused a deficiency in trust monies.

5.   The Solicitor has falsified trust records.

6.   The Solicitor attempted to mislead an Investigator.

7.   The Solicitor transferred costs without authority.

C.   FURTHER RESOLVED that pursuant to s. 77 of the Legal Profession Uniform Law (NSW), the Council of the Law Society of New South Wales [Council] immediately suspends the practising Certificate of Robert Remo Balzola [the Solicitor] on the grounds that the Council is considering whether to continue or complete an action under Part 3.5 of the Legal Profession Uniform Law (NSW) in relation to the Solicitor’s practising certificate and considers it necessary in the public interest to suspend the Solicitor’s practising certificate immediately.

FURTHER RESOLVED that, a complaint having been made about the conduct of Robert Remo Balzola [Solicitor] and the immediate suspension of the Solicitor’s practising Certificate under section 77 of the Legal Profession Uniform Law (NSW) being warranted in the public interest on the ground of the seriousness of the alleged conduct, the Council of the Law Society of New South Wales recommends pursuant to the provisions of section 278(1) of the Legal Profession Uniform Law (NSW), that it suspend the Solicitor’s practising Certificate for the year ending 30 June 2018 in accordance with Division 3 of Part 3.5 of the Legal Profession Uniform Law (NSW).

FURTHER RESOLVED that having regard to the recommendation under section 278(1) of the Legal Profession Uniform Law (NSW), the Council of the Law Society of New South Wales will:

1.   notify Robert Remo Balzola [Solicitor] of its preliminary view that his practising Certificate for the year ending 30 June 2018 be suspended until 30 June 2018; and

2.   in accordance with section 83(c) of the Legal Profession Uniform Law (NSW), invite the Solicitor to respond in writing by 9.00am on 14 August 2017 as to why his practising Certificate should not be suspended until 30 June 2018 pursuant to section 84 of the Legal Profession Uniform Law (NSW).

Reasons for Decision – Resolutions C. D and E

The Council, having regard to the contents of the report prepared by Mr Simon Ward, Trust Account Investigator, dated 19 June 2017, is of the opinion that the Solicitor has misappropriated client trust funds, caused deficiencies in trust monies, falsified trust records and breached various requirements of the Legal Profession Act, 2004 (“the Act”) and the Legal Profession Uniform Law (NSW) (“the Uniform Law”). The solicitor also attempted to mislead Mr Ward during the course of his investigation.

Mr Ward’s investigation has revealed a practice of using trust money, both from the trust account and received and held in the general account directly, to ensure sufficient funds were available in the general account to meet the liabilities of the practice.

For each instance where Mr Balzola received/transferred without authority or held and used trust money in his general account, he has breached section 254 of the Act” and/or section 137 of the Uniform Law, section 260 of the Act and/or section 146 of the Uniform Law and/or section 255 of the Act and/or section 138 of the Uniform Law.

Mr Balzola’s trust account records were incorrect, in breach of section 264 of the Act and/or section 147 of the Uniform Law. as these records did not take into account any trust money being received and held in the general account.

Mr Balzola also appears to have manipulated trust accounting records in an attempt to avoid detection by issuing receipts from his trust account for funds that v/ere never received to enable him to transfer funds from the trust account to his general account without creating a deficit in the trust account ledger. These errors were not reported in the trial balance as trust ledger deficits but were rather entered as adjustments to the bank reconciliation statements.

Mr Balzola regularly caused deficiencies in trust ledgers and the trust account.

Despite being informed numerous times of the requirement that he report debit balances to the Law Society (by Mr Connor in 2011, Mr Lynch in 2012 and Mr Sofiak in 2013), Mr Balzola failed to ever report a debit balance in breach of section 263 of the Act and/or section 154 of the Uniform Law.

Mr Balzola attempted to mislead Mr Ward in his investigation when questioning him over the establishment and use of a second trust account with Macquarie Bank as well as the transfer and use of trust money held for Mr Ghougassian in Matters 279 and 215 to pay for practice liabilities.

The nature of the solicitor’s alleged conduct is of such seriousness that the Council believes it warrants the immediate cessation of the solicitor’s right to practise.

FURTHER RESOLVED that the Council of the Law Society of New South Wales

1.   is of the belief that one or more of the circumstances referred to in 326(d) of the Legal Profession Uniform Law (NSW) exist in relation to the law practice known as Robert Balzola & Associates (Legal) Pty Ltd [FN 21883] [the Law Practice];

2.   is aware that Robert Remo Balzola has ceased to be an Australian Legal Practitioner; and

3.   being of the belief set out in paragraph 1 and being aware as set out in paragraph 2 determines that, having regard to the interests of the clients of the law practice, external intervention is warranted.

FURTHER RESOLVED that the Law Society Council, being of the opinion that the appointment is necessary to protect the interests of clients in relation to trust property, determines, pursuant to the provisions of section 327(2) (b)(ii) of the Legal Profession Uniform Law (NSW), to appoint RICHARD STEPHEN SAVAGE [MN 5670], Solicitor, as Manager of the Law Practice for a period of two years and subject to agreement and in accordance with standard Society conditions, and that:

1.   the Chief Executive Officer and/or the Secretary of the Society and/or the Manager of the Professional Standards Department be authorised to act as necessary in the matter of instructing the Society’s solicitor and to make any decision necessary for the implementation of the foregoing resolutions;

2.   the Manager be requested to furnish his first report within one month; and

3.   the Secretary of the Society be authorised to sign any Notice of Appointment pursuant to section 334 of the Legal Profession Uniform Law (NSW).”

  1. By summons filed 27 July 2017 the plaintiff sought the following relief:

1.   An order that the decision of the Council of the Law Society of NSW dated 20 July 2017 to suspend the practising Certificate of Robert Remo Balzola pursuant to s 77 of the Legal Profession Uniform Law (NSW) (LPUL) (the Suspension Decision) be set aside under s 100(1) of the LPUL or alternatively the inherent jurisdiction of the Court.

2.   An order that the decision of the Council of the Law Society of NSW dated 20 July 2017 to appoint a manager to the law practice known as Robert Balzola & Associates (Legal) Pty Ltd pursuant to s 334(2) of the LPUL (the Manager Decision) be set aside under s 358 of the LPUL or alternatively the inherent jurisdiction of the Court.

3.   The Suspension Decision be stayed pending a determination of Order 1.

4.   The Manager Decision be stayed pending a determination of Order 2.

  1. By a notice of motion filed the same day the plaintiff sought orders for a stay of the Suspension Decision and the Manager Decision as defined in the summons. The matter came before Lonergan J as a matter of urgency on 27 July 2017 where the following notation and orders were made by consent:

THE COURT NOTES THAT:

1. That the Defendant has agreed that, until further order of the Court, the decision of the Council of the Law Society of NSW dated 20 July 2017 to appoint a Manager to the law practice known as Robert Balzola & Associates (Legal) Pty Ltd (law practice) pursuant to s 334(2) of the LPUL will be limited to the extent that the powers of the Manager be limited to that of supervising the law practice’s trust account.

BY CONSENT THE COURT ORDERS:

1.   That, until further order of the Court, the decision of the Council of the Law Society of NSW dated 20 July 2017 to suspend the practising certificate of Robert Remo Balzola pursuant to s 77 of the Legal Profession Uniform Law (NSW) (LPUL) be stayed.

2.   The motion is otherwise dismissed.

  1. On 4 August 2017 the matter came before Fagan J because of a dispute between the parties about which of the parties should be required to file their evidence first. Justice Fagan made orders in that regard. In the course of so doing his Honour said this:

In the nature of the proceeding it is urgent that the plaintiff’s Summons should be finally disposed of in order to determine whether he should be suspended from practice.

There is a strong public interest in resolution of this where a trust account is concerned and where the Council has received a report such as that of Mr Ward identifying apparent serious irregularities in the plaintiffs handling of funds held by him in trust.

I indicate to the parties that they should be ready to take the appointment of a hearing date for the final disposition of the Summons when the matter is before the Registrar on 8 September 2017.

The Registrar is requested to note that the matter requires to be dealt with expeditiously and that a date for hearing should be appointed as soon as possible after 8 September 2017.

  1. Unfortunately, no hearing date was obtained on 8 September 2017 or thereafter. Rather, the matter was adjourned by consent from time to time with some further directions being given about evidence. No explanation was offered for that when the present notice of motion came for hearing before me.
  2. On 15 May 2018 leave was given by the Registrar to file the present notice of motion. That was a notice of motion filed 18 May 2018 by the plaintiff which sought the following declaration:

A declaration that, in the events which have happened, the defendant’s immediate suspension of the plaintiff’s practising certificate under s 77 of the Legal Profession Uniform Law (NSW) on 20 July 2017 has expired.

  1. The issue on that notice of motion is a narrow one. It concerns the effect of the stay ordered by Lonergan J in relation to the suspension of the practising certificate pursuant to s 77 of the Legal Profession Uniform Law (NSW) No 16a (the Law).
  2. Section 77 provides:

77 Immediate variation or suspension before or during consideration of proposed action

(1)   This section applies if the designated local regulatory authority is considering whether to start, continue or complete action under this Part in relation to a certificate and the designated local regulatory authority considers it necessary in the public interest to vary or suspend the certificate immediately.

(2)   The designated local regulatory authority may immediately vary or suspend the certificate, by written notice given to the holder, until the earlier of the following –

(a)   the time at which the designated local regulatory authority informs the holder of the designated local regulatory authority’s decision under this Part;

(b)   the end of the period of 56 days after the notice is given to the holder under this section.

(3)   The holder may make written representations to the designated local regulatory authority about the variation or suspension, and the designated local regulatory authority must consider the representations.

(4)   The designated local regulatory authority may at any time revoke a condition imposed by the variation under this section, whether or not in response to any written representations made to it by the holder.

  1. The plaintiff submitted that, pursuant to s 77(2) the suspension of the plaintiff’s practising certificate has expired because no further decision has been made under Pt 3.5 of the Law and 56 days has expired after the notice was given to the plaintiff of the suspension. The Law Society submitted that the effect of the stay was not only that the suspension of the practising certificate ceased to be in force during the period of the stay but also that the 56 day period referred to in sub-s (2)(b) did not run. It was common ground that no further decision has been made by the Law Society under Pt 3.5.
  2. The scheme of Pt 3.5 of the Law provides for two circumstances where the Law Society can, relevantly, suspend a solicitor’s practising certificate. Under s 77 a practising certificate can be suspended immediately where the Law Society considers it is necessary in the public interest to do so. That suspension is a temporary one which lasts either for a period of 56 days or until the Law Society informs the practitioner of its decision under Pt 3.5, either to lift the suspension or to impose a suspension for a specified period of time under s 82, whichever is earlier.
  3. The second source of power for the Law Society to suspend a practising certificate is under s 82 on a ground referred to in that section. Sections 82-84 provide:

82 Grounds for action under this Division

(1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that—

(a) the holder has contravened a condition of the certificate; or

(b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or

(c) a local regulatory authority has made a recommendation to that effect under section 278, 299(1)(g) or 466(7); or

(d) in the case of an Australian practising certificate—the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner.

Note Section 227 empowers the designated local regulatory authority to suspend an Australian practising certificate or Australian registration certificate for failure to pay an annual contribution or a levy.

(2) The designated local regulatory authority may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section and—

(a) the charge has not been determined; or

(b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded.

(3) The variation or suspension referred to in subsection (2) has effect until the earliest of the following occurs—

(a) the designated local regulatory authority revokes it;

(b) the end of the period specified by the designated local regulatory authority;

(c) if the holder is convicted of the offence—28 days after the day of the conviction;

(d) if the charge is dismissed—the day of the dismissal.

(4) The designated local regulatory authority may recommend to another designated local regulatory authority that consideration be given as to whether the holder of an Australian practising certificate is, or may be, unable to fulfil the inherent requirements of an Australian legal practitioner (as referred to in subsection (1)(d)).

(5) Subsection (4) does not by implication limit the powers of any local regulatory authority.

83 Local regulatory authority to give notice before acting under this Division

If the designated local regulatory authority considers that a certificate should be varied, suspended or cancelled on a ground specified in section 82, it must give the holder notice in writing –

(a)   stating that it proposes to take that action and the ground or grounds for the proposed action; and

(b)   if it proposes to vary or suspend the certificate, stating the proposed variation or period of suspension, as the case requires; and

(c)   inviting the holder to respond in writing to the designated local regulatory authority within a specified period (not being less than 7 days nor more than 28 days after the notice is given) as to why the proposed action should not be taken.

84 Action taken after giving notice

If the designated local regulatory authority –

(a)   has given notice under section 83 to the holder of a certificate of its proposed action; and

(b)   the time specified in the notice for a response from the holder has expired –

it may, after considering any response made by the holder, by notice in writing given to the holder, take the proposed action or take less onerous action that it considers appropriate.

  1. It may be observed that there are different requirements for procedural fairness depending upon whether a suspension is imposed under s 77 or s 82. Under s 82, notice must be given under s 83, and the Law Society must consider any response made by the solicitor before imposing the suspension. On the other hand, where a suspension is imposed under s 77, the suspension may be imposed without notice being given, but if the solicitor makes written representations about the suspension the Law Society must consider those representations. Sections 77 and 78 when read together suggest that in some cases notice might be given by the Law Society before a suspension is imposed, but in others the representations will be made after the suspension is imposed, with the Law Society being able to revoke or vary or lift the suspension whether in response to those representations or not.
  2. Section 100 gives a right of appeal concerning practising certificates. That section relevantly provides:

100 Right of appeal or review about Australian practising certificates

(1)   An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter –

(a)   a decision to refuse to grant or renew the Australian practising certificate;

(b)   a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;

(c)   a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94).

(2)   An appeal or review under this section may be made to review the merits of the decision concerned.

(3)   The designated tribunal may make any order it considers appropriate on an appeal or review under this section, including any of the following orders –

(a)   an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate;

(b)   an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled;

(c)   an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years;

(d)   an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal.

(4)   Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned.

(5)   The designated tribunal may not order the imposition of conditions on an Australian practising certificate without first taking submissions from the designated local regulatory authority.

(6)   In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given.

(7)   In proceedings on an appeal or review under this section in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue –

(a)   the onus of establishing that a person is a fit and proper person to hold an Australian practising certificate is on the person asserting that fact; and

(b)   it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of the designated local regulatory authority for the decision concerned is a correct statement of the facts in the matter; and

(c)   a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act is admissible in the proceedings and is evidence of the matters stated in the document.

(8)   The designated local regulatory authority is to give effect to any order of the designated tribunal under this section.

Note

Jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.

                     (Emphasis added)

  1. In my opinion, the plaintiff is correct in its submission that the stay granted does not have the effect of extending the 56 day period referred to in s 77(2). My reasons are as follows.
  2. First, the terms of the stay referred only to the decision of the Council of the Law Society on 20 July 2017 to suspend the practising certificate pursuant to s 77. No stay was sought, and none was ordered, to prevent the Law Society considering whether to start, continue or complete any action under Pt 3.5 which might result in a further suspension or other decision under s 82.
  3. Secondly, the power of suspension given under s 77 is distinct from a suspension which might be imposed under s 82. Section 77 gave a power which had to be exercised in accordance with s 77(1). There were two conditions. The first was that the Law Society had to be considering whether to start, continue or complete some action under Pt 3.5 in relation to a practising certificate. The second condition was that the Law Society had to consider it necessary in the public interest to vary or suspend the certificate immediately. The Law Society could do that without first giving notice of its intention to do so to the holder of the practising certificate. That was to be contrasted with a suspension under s 82 which could not be imposed until the notice had been given under s 83, and the Law Society had taken into account any response by the solicitor. The suspension under s 77 could only operate for a maximum of 56 days. The suspension under s 82 operates for the time specified in s 82(3), but may operate until the determination of a tribunal after a hearing on the merits of the complaint which led to the suspension.
  4. Thirdly, nothing in Pt 3.5 suggests that any stay of a s 77 suspension would bring about an enlargement of the period in which a more final decision needs to be made under s 82. There is, for example, no power in the Act for an extension to be granted to the Law Society in respect of the periods specified in s 77(2). The only references to a stay in Pt 3.5 appear in ss 79(2) and 100(4). Section 79(2) provides:

A variation, suspension or cancellation referred to in subsection (1) does not have effect during any period in respect of which the stay is in force.

  1. Relevantly, s 100(4) says:

the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned.

  1. The Law Society submitted that the stay operated in the way set out in s 79(2), that is, that it resulted in the suspension not having effect. I accept that submission. It should be noted, however, that s 79(2) makes clear that it is only the stay, suspension or cancellation that does not have effect during the period of the stay; nothing else is said to be affected.
  2. The Law Society then submitted that part of “the effect of the … suspension” referred to in s 100(4) was that s 77(2)(b) had no continuing operation. This was because s 77(2) provided a balance between any punitive effect of the suspension and the need for public protection. It was the time limit which provided that balance. Hence, the Law Society submitted, where the plaintiff was no longer suspended because of the stay, there was no balance to be struck.
  3. Even if s 77(2) strikes a balance as submitted, nothing in the stay order or the Law provides any basis for the Law Society not proceeding to consider and take further action under Pt 3.5 if it was so minded. Whilst the need for the balance is removed by the stay, that cannot operate effectively to extend the statutory period for the interim arrangement to come to an end. It would be necessary for the plaintiff to seek an injunction to prevent the Law Society taking any steps towards a decision under s 82 if there were grounds to do so. The Law Society is still free to take action under s 82, but it may no longer suspend the plaintiff’s practising certificate whilst it is in the process of taking that course.
  4. Section 100(4), like s 79(2), is directed to the refusal, variation, suspension or cancellation itself and not to any other matters including the obligation in s 77(1) that enables an immediate suspension to be imposed; namely, the consideration by the Law Society of whether to start, continue or complete action under Pt 3.5. The obligation on the Law Society to be “considering” is not an effect of the suspension; it was the pre-requisite to the suspension.
  5. The Law Society pointed to what Barrett AJA said in Russo v Legal Services Commissioner [2016] NSWCA 95 when speaking of a stay. Justice Barrett said at [8]:

… the stay does not overturn the order below. It leaves the order intact but temporarily neutralises or suspends its effect.

That is true in the present case. The suspension is neutralised. That says nothing about the effect, if any, of the stay on the obligation referred to in s 77(1) which entitled the suspension to be put in place in the first instance.

  1. The Law Society submitted that the issue raised by Mr Ward’s report that led to the resolution could be determined in the present proceedings to avoid a multiplicity of proceedings. Whilst accepting that this is a desirable outcome, it does not assist in the determination of the issue.
  2. In any event, if the Law Society proceeds to impose a second and more final suspension under s 82, it will be that suspension which will be the operative one. At that point there would be limited utility in challenging the temporary suspension imposed under s 77. If there was to be a challenge to the s 77 suspension it would need to be made and determined before the s 82 suspension came into effect. It seems likely that the issue on such a challenge would focus on whether the Law Society had any basis for its decision (perhaps to head off a s 82 suspension before it was imposed)(Berger v Council of the Law Society of NSW [2013] NSWSC 1080 at [18]), whether the public interest warranted an immediate suspension (Berger at [20]), and, perhaps, a challenge on the basis of the limited obligation on the part of the Law Society to accord procedural fairness in the light of the terms of s 77.
  3. Since the 56 day period has expired without any action under s 82, the temporary suspension under s 77 has lapsed. The plaintiff is entitled to the declaration sought.
  4. Senior counsel for the Law Society said that, in the light of the stay granted, the Law Society did nothing towards making any decision in relation to s 82. This was because the Law Society is a model litigant and did not want to do anything which might lead to an approach by the plaintiff to the Court asserting an abuse of process whilst the stay was in place. I accept that the Law Society acted in good faith in that regard.
  5. It is nevertheless unfortunate that so much time has elapsed since the stay was put in place and the 56 day period expired. No explanation has been offered, as I have said, about why steps were not taken more promptly to have the proceedings brought on for hearing. Justice Fagan urged expedition. Notwithstanding his remarks on 4 August 2017 the plaintiff did not seek a hearing date when the proceedings were before the Registrar on 8 September. Rather, the proceedings were adjourned by consent a number of times with the result that the principal relief sought in the proceedings has become, as a result of the effluxion of time, largely otiose.
  6. In those circumstances, there should be no order as to the costs of the motion to the intent that each party should pay his and its own costs.
  7. Accordingly,
  1. I declare that, in the events which have happened, the defendant’s immediate suspension of the plaintiff’s practising certificate under s 77 of the Legal Profession Uniform Law (NSW) on 20 July 2017 has expired.
  2. No order as to costs of the motion filed 18 May 2018 to the intent that each of the parties pays his and its own costs.

**********

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: 08 June 2018

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NEW SOUTH WALES NEWS INCITING VIOLENCE AGAINST LGBTI PEOPLE WILL COP THREE YEARS IN JAIL UNDER NEW NSW LAWS

court legal laws convictions

People who incite or threaten violence against anyone based on their gender or sexuality will risk a three-year jail sentence under new laws to be introduced into New South Wales parliament.

Attorney General Mark Speakman yesterday said the state government has listened to the community and is acting to replace provisions in the Anti-Discrimination Act that have proven ineffective, allowing some people to escape punishment for encouraging violence.

“People who incite violence are a threat to community safety,” Speakman said.“If passed, these laws will help protect individuals and groups from being targeted by cowards who seek to cause physical harm to innocent people.

“We’re not saying people can’t have opinions or express their views, but if they cross the line into threatening and inciting violence they will not go unpunished.”

The legislation will create a new offence in the Crimes Act of publicly threatening or inciting violence against people on the grounds of race, religious affiliation, sexual orientation, gender identity, intersex or HIV/AIDS status, including a maximum penalty of three years imprisonment and a fine of $11,000.

The Bill will abolish offences in the Anti-Discrimination Act that presently carry a maximum sentence of six months in prison.

“The new laws will send a very clear message to offenders that we will not tolerate behaviour which risks people’s safety simply because they belong to a particular group,” said Speakman.

“In 1989, the New South Wales Liberals and Nationals Government was the first in Australia to introduce legislation to help protect historically targeted communities from harm. Today we’re acting again to strengthen the law and support people to go about their lives without fearing for their safety just because of who they are or what they believe.

“Our new laws will boost police powers allowing them to target offenders and better protect a broader range of people, including those belonging to religious groups.”

Speakman thanked the Keep NSW Safe Coalition, religious leaders and other groups for their helpful feedback about violence and vilification in developing the new legislation.

© Star Observer 2017 | For the latest in lesbian, gay, bisexual, trans* and intersex (LGBTI) news in Australia, be sure to visit starobserver.com.au daily. You can also read our latest magazines or Join us on our Facebook page and Twitter feed.

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Blogger cops $2500 penalty for ‘child molester’ video

Newcastle cab driver and blogger John Sunol.
Newcastle cab driver and blogger John Sunol.
  • The Australian – 
    Reporter Sydney

A Newcastle blogger has been fined $2500 for posting a video online labelling a Sydney gay rights activist a “child-molesting faggot”.

John Sunol, 60, was ordered by the NSW Civil and Administrative Tribunal yesterday to pay $2500 to Garry Burns, 61, who claimed he had been the victim of homosexual vilification in January last year.

Despite Mr Sunol telling the tribunal he removed the video, it was on YouTube last night.

Mr Burns, who had sought $5000, said the five-minute video was online for weeks and amounted to unlawful homosexual vilification.

In the video, “Message to Garry Richard Burns over my $55,000 Debt”, the former cab driver protested against attempts by Mr Burns to enforce a judgment debt for a separate anti-discrimination complaint, labelling his claims “hyped-up rubbish”.

Since the video was posted, Mr Burns, who described himself as a “public-interest litigant’’, said he had received threatening phone calls: “I have had people ring me up anonymously and make threats. My life is in danger and I can’t do anything about it.”

The tribunal noted he held a “genuine concern” for his safety as the comments could lead people to believe he was a pedophile and seek retribution.

Mr Sunol, a member of the Australian Christian Lobby, said the claim his video had upset Mr Burns was “disingenuous” and pleaded with the tribunal not to enforce a financial penalty.

The tribunal found Mr Sunol’s comments had the capacity to “incite hatred towards and serious contempt for Mr Burns on the ground of homosexuality”.

Original Story Here

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Australian Christian Lobby welcomes supporter with a history of vilification

John Christopher Sunol has never held back on his views about LGBTI people. The former taxi driver has been found to have vilified and victimised homosexual people on several occasions. This week the blogger posted to his Twitter account news that he…

Source: Australian Christian Lobby welcomes supporter with a history of vilification

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John Sunol – Supreme Court of NSW for determination

NSW Crest

Civil and Administrative Tribunal
New South Wales

Medium Neutral Citation:
Burns v Sunol [2018] NSWCATAD 109
Hearing dates:
11 May 2018
Date of orders:
25 May 2018
Decision date:
25 May 2018
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
The Hon F Marks, Principal Member
Decision:
(1) I hereby refer to the Supreme Court of NSW for determination the allegation that the respondent John Christopher Sunol is guilty of contempt of this Tribunal made by the applicant Garry Burns. Such contempt is constituted by the publication by the respondent of the material described in [7], [8], and [9] in Burns v Sunol [2018] NSWCATAD 78, and which I have found is capable of constituting contempt of the Tribunal The referral is made pursuant to the provisions of section 73 (5) of the Civil and Administrative Act.

(2) I hereby refer to the Supreme Court of NSW for determination pursuant to the provisions of section 73 (5) of the Civil and Administrative Act the conduct of the respondent John Christopher Sunol which I describe hereunder, because it appears to me on my own view that by reason of that conduct the said John Christopher Sunol is guilty of contempt of this Tribunal. The conduct is;

(a) the publication by the respondent of the material described in [17] in Burns v Sunol [2018] NSWCATAD 78

(b) the failure of the respondent to comply with the orders of this Tribunal particularised in [92] and in [93] in Burns v Sunol [2018] NSWCATAD 78.

For ease of understanding I set out again the contents of [92] to which I have added reference to the citations of the several Decisions of the Tribunal

(i) the failure of the respondent to make payment of the monies ordered to be paid on 22 January, 2014 as set out in paragraph [38] above. Burns v Sunol [2014] NSWCATAD 2; (22 January 2014)

(ii) the failure of the respondent to refrain from publishing further material “to the same or similar effect” by order of the Tribunal made on 22 January 2014 as found in paragraph [50] above. Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)

(iii) the failure of the respondent to refrain from publishing materials to the same or similar effect on any website controlled by him as ordered by the Tribunal on 14 May 2014 as set out in paragraph [43] above constituted by the publication of material identified in subsequent Decisions of the Tribunal Burns v Sunol [2014] NSWCATAD 61; (14 May 2014)

(iv) the failure of the respondent to make payment of the monies ordered to be paid on 14 May 2014 as set out in paragraph [44], [49] and [50] above. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014), Burns v Sunol [2014] NSWCATAD 62; (14 May 2014), Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)

(v) the failure of the respondent to refrain from publishing material as identified in paragraph [54] above pursuant to order made on 25 June 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2015] NSWCATAD 131 (25 June 2015), Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

(vi) the failure of the respondent to refrain from publishing material as identified in paragraph [56] above pursuant to an order made on 24 September 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

Catchwords:
Application to refer proceedings to Supreme Court for determination of contempt under section 73 (5) of the Civil and Administrative Tribunal Act – referral of proceedings for determination of contempt to Supreme Court of own motion-principles relevant to referral – proceedings referred
Legislation Cited:
Civil and Administrative Tribunal Act
Cases Cited:
Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88
AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46
Gallagher v Durack [1983] HCA 2
Category:
Principal judgment
Parties:
Garry Burns (Applicant)
John Christopher Sunol (Respondent)
Representation:
Self-represented (Applicant)
Self-represented (Respondent) 
File Number(s):
2018/00016576
Publication restriction:
Nil

REASONS FOR DECISION

Background

  1. In proceedings Burns v Sunol [2018] NSWCATAD 78 (“the earlier decision”) I dealt with an application by the applicant Garry Burns to refer the publication of certain material by the respondent John Christopher Sunol to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Civil and Administrative Tribunal Act (“the Act”). The basis of the application was that the material published by the respondent was alleged to constitute contempt of the Tribunal. It is convenient to set out the provisions of section 73 of the Act because they create the statutory context in which these proceedings are conducted.

73 CONTEMPT OF TRIBUNAL

(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4) For the purposes of this section:

(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note : Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

  1. As a result of certain matters which were brought to my attention by the respondent during the course of the hearing I formed the impression that the respondent may have otherwise conducted himself in a manner which constituted contempt of this Tribunal. Those matters were in addition to the matters which formed the basis of the application brought by the applicant. In the earlier decision I stood the proceedings over to enable the respondent to adduce such evidence and make such submissions as he wished to in support of any matters which he wished to advance as to why I should not exercise the discretion to refer both sets of conduct to the Supreme Court for determination of whether they constituted contempt of the Tribunal.
  2. The matters published by the respondent which were the subject of the application brought by the applicant are described in paragraphs [6] to [10] of the earlier decision. The conduct of the respondent about which the respondent has been asked by the Tribunal of its own motion to show cause why it should not be referred to the Supreme Court for determination under section 73 (5) of the Act is to be found in paragraphs [17] and in [22] to [75] of the earlier decision.
  3. I intend that these reasons for decision should be read in conjunction with the earlier decision.
  4. I note for completeness that because none of the conduct of the respondent which involves considerations of contempt can be characterised as contempt committed in the face of or in the hearing of the Tribunal, no question arises whether this Tribunal is empowered to determine the matter for itself. The powers of the tribunal are limited in the circumstances to a consideration of whether to refer the several matters to the Supreme Court pursuant to section 73 (5) of the Act.

The evidence and submissions of the parties given in response to the show cause decision

  1. The applicant filed two affidavits and supplemented them with oral evidence including cross examination by the respondent. In the first affidavit dated 12 April 2018 the applicant annexed a Certificate issued by the Registrar of this Tribunal on 16 October 2016 pursuant to the provisions of section 78 of the Act. That Certificate was issued relating to file numbers 111024, 111043, 111120, 121023, 131095, 131012, 131062, 121050, 121058, 121070, 121082 and 131012. The certificate forms an annexure to this Decision.
  2. It will be seen that the effect of the Certificate is to certify that the several orders made by the Tribunal which were identified in the earlier decision were made and that as at 10 October 2016 there was owing unpaid the sum of $49,500. From this amount should be deducted for present purposes the sum of $6500 being amounts ordered to be paid by the former Administrative and Decisions Tribunal as outlined on the first page of that Certificate. In that none of the decisions referred to in the Certificate has been overturned on appeal, or subject to any other challenge of any kind, the Certificate must stand for and represent the fact of the respective orders having been made, and that the orders for payment of monies have not been complied with.
  3. In the course of his affirmed evidence given on 11 May 2018 the applicant said that he conducted an Internet search on 11 April 2018 at 9:59 AM by using the Google search engine to search John Christopher Sunol. There appeared in response to the search which he had conducted a large number of items. Relevantly, there appeared an item posted on 28 January 2017 which is the same item concerning the named Principal Member of this Tribunal as described in paragraph [8] (1) and (2) in the earlier decision. Even though there is a reference at the bottom of the screen shot which the applicant made at that time on that date and which is annexed to his affidavit to the effect that it is located in “http://archive.is/UpSRI” it was nevertheless clearly visible on the search that he conducted. This is clearly indicative that despite the protestations of the respondent that he has taken steps to remove offending material from his website, being material which he referred to as “abhorrent” as I have recorded in the earlier decision, such material had not been removed as at 11 April, 2018.
  4. Included within the material annexed to the applicant’s affidavit is an extract from the respondent’s blog website bearing date 10 April, 2018 at 1:12 PM. The location also refers to johnsunol4.blogspot.com.au. Included within this material is a reference by the respondent to the fact that he owns his own home which he values at not less than $700,000-$800,000 which “has a large investment factor” by reference to it being close to the University of Newcastle “with a prime student rental and other rental prospective.” The material then states; “I am so fortunate I have my home in a shelf company as if I didn’t I would be forced to sell by the LGBT lobby and mobs of homosexual rights lobbyist (sic) would dive in like sewer rats to take me to Court based on lies to claim their share of my assets.” It may be assumed that this is indicative that the respondent is content to use his “ownership” of his home through the services of a “shelf company” as a means of avoiding paying, at the least, monies due under the several orders made by this Tribunal.
  5. In his affidavit of 13 April 2018 the applicant affirmed that he had visited the website of the respondent “http://johnsunol4.blogspot.com” on 13 April, 2018 at 7:59 AM. Included within the screenshot which the applicant said that he took of the material displayed was a reference to the possibility of referral to the Supreme Court with the following notation “I will not accept that I have contempt to the law. I refuse to accept this lie as I was set up and framed by homosexual activists. I will accept nothing else.” The respondent also maintained that the contemptible material was written by Luke McKee “from Vietnam” who was a co-author of his blog at the time that the material was written concerning the Principal Member of this Tribunal referred to above. He continued to maintain that that material was published without his knowledge and that he knew nothing about it until it was “brought out before NCAT to attack me with as a weapon.” He attacked the unnamed person who was accusing him as a “cyber bullying trying to bully me into accept homosexual rights but due to my faith (Pentecostal evangelical) I can never accept gay rights nor will I as I see this as: homosexual rights are wickedness before God to me in my Belief.”
  6. The proceedings conducted on 11 May 2018 were scheduled to commence at 10 AM. At 9:25 AM that day the respondent filed a request with the Registry that videoconference evidence be taken at 10 AM that day from Luke D McKee whose remote location was said to be Hanoi, North Vietnam and a telephone number was provided. It was said on the request form that Mr McKee would assist the respondent’s defence by proving that he was not responsible for writing or publishing the material complained of by the applicant. When the proceedings commenced I indicated to the respondent that the Registry would require 48 hours’ notice to set up a remote facility for taking his evidence. The respondent said in response to a question I asked of him that he did not have any form of statement from Mr McKee concerning the evidence that he was likely to give, that he had not spoken to Mr McKee but had communicated with him by email. He said he had an arrangement that Mr McKee would telephone the registry at 10:30 AM that day. As at 10:40 AM, when the proceedings were adjourned at the conclusion of the hearing no such phone call had been received from Mr McKee.
  7. In any event, I indicated that in view of the delay that would be occasioned in setting up the audio visual link I was not prepared to allow Mr McKee’s evidence to be adduced because there was no clear indication given as to the nature and effect of that evidence, the request could easily have been made earlier and was made too late, and significantly, there was considerable doubt concerning the utility of the evidence that could be given by Mr McKee. This was because the respondent had persisted during the course of many of the hearings before the Tribunal as outlined in the earlier decision that Mr McKee had written the material without his consent. However, the respondent acknowledged that because the material had been published on his website he was responsible for it. To this extent the authorship of Mr McKee is less relevant. Furthermore, the respondent had informed the Tribunal on several occasions that he had made arrangements to have the offending material removed, yet it remained on his website, and still remained on his website as recently as 11 April 2018, as referred to in the evidence of the applicant which I have set out above.
  8. Apart from seeking to introduce this evidence, the respondent repeated the assertions which he had previously made to the effect that he was not responsible for writing the offending material, and that he had endeavoured to have it removed.
  9. In a document entitled “submission” and headed “without prejudice” the respondent referred to the earlier decision and complained that it introduced material that had not been referred to during the course of the earlier hearing. It is clear that the respondent has failed to address the notice given to him that the hearing which I conducted on 11 May 2018 was held for the purpose of enabling him to make submissions whether it was appropriate to refer that material to the Supreme Court under section 73 (5) of the Act. In any event, he did not seem anxious to address this orally although his written submission document contained the following material referring to the discussion in the earlier decision of the history of the proceedings before the Tribunal:

16. I cannot see the fairness or relevance of the presiding member hanging out all this “dirty laundry” in this case, that is immediately seized upon by the media and in particular the homosexual community’s nationwide newspaper the Start Observer. I am being sent to the Supreme Court and will be perceived to be sent there for homosexual vilification which is not the truth. I submit that my being sent to the Supreme Court is being done for political propaganda purposes, to provide the gift of a scapegoat to the “homosexual community”.

  1. I perceive this material as indicating a lack of concern about the circumstances in which these proceedings are being taken, the significance of the conduct which he is alleged to have committed and a lack of understanding of the role that this Tribunal takes in ensuring the proper administration of the rule of law. I shall return to this aspect later in these reasons for decision.
  2. When asked whether the material contained within this submission document contained everything that he wished to say in order to establish that he had a reasonable excuse for his conduct, the respondent replied in the affirmative.

The relevant principles concerning referral consequent on an application for referral

  1. I had occasion to consider the relevant principles which inform the exercise of discretion under section 73 (5) of the Act in Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88. I should stress that those proceedings concerned only an application for referral and not a consideration of the matter on the initiation of the Tribunal. Furthermore, they were confined to contempt said to be constituted by continuing and persistent breaches of Orders of this Tribunal. At [28] to [35] I said;

There are a number of authorities which will govern the approach to be adopted in the resolution of these proceedings.

It should first be observed that I am concerned only with the question of whether or not, by reason of the allegations of contempt against the respondent made by the applicant, that matter should be referred to the Supreme Court for determination by that Court. An alternative question may arguably arise under sec 73(5) about whether I have formed any independent view that the respondent is guilty of contempt of the Tribunal. Because of the view which I take concerning the disposition of these proceedings it is not necessary that I consider this question further. Arguably, if I were to do so I would need to be satisfied that in my view it appears that the respondent is guilty of contempt. Arguably, also, there may be a difference in approach between what is required to be considered and determined depending upon whether the question is one of what “appears” to the Tribunal “on its own view” or the question concerns an allegation that the respondent is guilty of contempt. In either case, this Tribunal has a discretion under section 73 (5) whether to refer the matter to the Supreme Court, and the exercise of that discretion must involve a consideration of relevant matters.

As I have formed the view that I am able to dispose of these proceedings by having regard only to the allegations of contempt made by the applicant, it is only necessary to consider such matters as are relevant to the exercise of discretion whether to make the relevant referral. Fortunately, guidance is provided as to the appropriate in principle approach by observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is “capable of amounting to contempt.” The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court. I shall proceed accordingly.

Many of the cases involving contempt have focused on the civil/criminal contempt dichotomy and the relevant onus of proof. The distinction between the two occupied the attention of the High Court of Australia, in AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46. In determining this issue, the Court examined the criteria which divided one class of contempt from the other. This caused the Court to consider the nature of the conduct in the context of whether any disobedience to a court order was criminal if the primary purpose was to vindicate the authority of the court or civil if the primary purpose was to vindicate the rights of an individual party to litigation. This in turn caused the Court to consider “the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other ….” (at [21]).

The characterisation of the admitted disobedience by the respondent of the several orders of this Tribunal which is at the heart of these proceedings involves a consideration of whether and to what extent the disobedience may have been, on the one hand, casual, accidental or unintentional, or wilful. For this reason, the observations of the plurality in Mudginberri are of assistance.

In their joint judgement, Gibbs CJ, Mason, Wilson and Deane JJ, after discussing the imposition of fines in the context of civil contempt in authorities dating back to the 16th and 17th Centuries, said;

22. In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (Phonographic Performance; British Motor Trade Association v. Hewitt, reported only in “The Times”, 1 June 1951; Multiform Displays Ld v. Whitmarley Displays Ld (1957) RPC 137; Steiner Products Ltd v. Willy Steiner Ltd (1966) 1 WLR 986; (1966) 2 All ER 387; In re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement (1966) 1 WLR 1137; (1966) 2 All ER 849; Heatons Transport (St Helens) Ltd v. Transport and General Workers’ Union (1973) AC 15; Coonan & Denlay Pty Ltd v. Superstar Australia Pty Ltd (No. 2) [1981] FCA 197; (1981) 57 FLR 118, affirmed on other grounds [1982] FCA 190; (1982) 65 FLR 432; Flamingo Park Pty Ltd v. Dolly Dolly Creation Pty Ltd [1985] FCA 123; (1985) 59 ALR 247). In Phonographic Performance Cross J. held, at pp 198-199, that where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt has a dual character, namely, (a) as between the parties to the proceedings, the element of civil execution and (b) as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest. In such a case, at least, “(c)ivil contempt bears much the same character as criminal contempt.” His Lordship held that the “very great casualness” of the defendants in complying with the order amounted to “wilful disobedience”, though it did not involve a sufficient “measure of contumacy” to warrant the imposition of a fine. His Lordship asserted, at p.200, that there was a lack of logic in saying that in a case of civil contempt “the court has no alternative to sending the defendants to prison”, concluding, at p.201, that “the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine”.

23. In Morgan Windeyer J. considered, at pp.499-500, that this conclusion was inconsistent with the comments of Lord Lindley in Seaward v. Paterson and Lord Atkinson in Scott, at pp 497-500. His Honour did not consider the English decisions in Hewitt and Multiform to have authoritative value because the defendants did not contest their liability to a fine, perhaps because had they done so it might have ensured their imprisonment. His Honour pointed out, at pp.501-502, that cases in the United States supported the view that there was no power to fine for civil contempt, and such cases as there were in which fines were imposed for civil contempt were explicable on the basis that they were cases in which the fine was payable to the injured party to make good his actual loss, the fine corresponding to assessment of compensation or an account of profits (see United States v. United Mine Workers of America [1947] USSC 40; (1947) 330 US 258, at pp 303-304; Gompers v. Bucks Stove & Range Co. [1911] USSC 79; (1911) 221 US 418, at p 449; Leman v. Krentler-Arnold Hinge Last Co. [1932] USSC 26; (1932) 284 US 448). Subsequently in his judgment (at pp 502-503), Windeyer J. indicated a view that wilful conduct would not constitute contempt unless it was also “contumacious”. In support of that view, his Honour cited (at p 503) Fairclough v. Manchester Ship Canal Co. (1897) WN 7; 41 SJ 225 and Worthington v. Ad-Lib Club Ltd (1965) Ch 236.

24. However, the position has been illuminated by the decisions since Morgan. It can now be seen that Cross J.’s interpretation in Phonographic Performance of the word “wilfully” in Ord.42, r.31 of the Rules of the Supreme Court, 1883 accorded with a proper understanding of what had been said by the English Court of Appeal in Fairclough where the Court contrasted “casual, or accidental and unintentional disobedience” with what was required in a case where “it is sought to commit a private individual to prison for contempt” or “to sequestrate the property of a company upon the ground of disobedience” (see, for example, Steiner, at pp.991-992; p.390 of All E.R.; Mileage Conference, at pp.1161-1162; pp.861-862 of All E.R.; and Flamingo, at p.260). In Steiner Stamp J. imposed a fine upon the defendants as punishment for a contempt constituted by breach of an undertaking to the court in a case which was not one which it was “possible to regard as an obstinate disregard” of the undertaking but which was “simply a case of a failure by the company, for no excuse whatever, to carry out the terms of its undertaking” (at p.992; p.390 of All E.R.). In the course of his judgment, Stamp J. pointed out (at pp.991-992; p.390 of All E.R.) that the Court of Appeal in Fairclough, in expressing the view that it was necessary, in such cases, that the court’s “order has been contumaciously disregarded”, was using the word “contumaciously” in the narrow sense of “wilfully”. Stamp J. expressed the conclusion, in support of which he cited the judgments of Chitty J. in Attorney-General at the Relation of the Leyton (Essex) Urban District Council v. Walthamstow Urban District Council (1895) 11 Times LR 533 and Warrington J. in Stancomb v. Trowbridge Urban District Council (1910) 2 Ch 190, that any “disobedience which was worse than casual, accidental or unintentional must be regarded as wilful”. His Lordship had earlier indicated that, if the effect of the decision of Stirling J. in Worthington was that “nothing short of stubborn opposition to the terms of an order or undertaking amounted to wilful disobedience so as to be punishable by proceedings for attachment”, he was not prepared to follow it. In that regard, it is of interest to note that in Mileage Conference (at p.1162; pp.861-862 of All E.R.) the members of the Restrictive Practices Court, who included Megaw J. as President and McVeigh L.J., suggested that the approach of Stirling J. in Worthington, which they rejected, had resulted from the fact that the only report of Fairclough which had been cited to Stirling J. had been “the abbreviated eight-line report in the Weekly Notes, and not the fuller and better report in the Solicitors Journal” and that Windeyer J., in Morgan, had likewise referred only to the report of Fairclough in the Weekly Notes when citing that case and Worthington in support of the proposition that conduct which was “wilful, but not contumacious”, was not punishable by fine or sequestration. In Mileage Conference, the members of the Restrictive Practices Court (at p.1162; p.862 of All E.R.) accepted as correct the view of the law expressed by Warrington J. in Stancomb (at p.194), namely, that it is no answer to proceedings for contempt “to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order”. Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was “through carelessness, neglect, or even in dereliction of his duty” (per Warrington J. in Stancomb, at p.194). In Mileage Conference itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice.

25. The correctness of the approach outlined in the preceding paragraph was endorsed by the House of Lords in Heatons Transport, at p.109; their Lordships explicitly citing Steiner and Mileage Conference as precedents for the imposition of a fine in a case of disobedience to an order which is more than casual, accidental or unintentional. This endorsement was evidently based on the reasoning in the decisions to which we have referred, including an appreciation of the unsatisfactory consequences which would flow from the adoption of the view that there is no power to fine in such cases. To those reasons we would add the comment that lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903

.

Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a “deliberate commission or omission which is in breach of an … order (which will thereby)… constitute … wilful disobedience unless it be casual, accidental or unintentional.” “Deliberate” where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had “no direct intention to disobey the order”. Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful “even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was “through carelessness, neglect, or even in dereliction of his duty”

.

The High Court of Australia revisited the civil/criminal contempt dichotomy in Witham v Holloway [1995] HCA 3. It is not necessary that I refer to the judgements in those proceedings at this stage, save to note that the joint judgement of Brennan, Deane, Toohey and Gaudron JJ applied Mudginberri and emphasised that “the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.”

  1. Accordingly, as discussed above, the fundamental question to be determined is whether the conduct which is the subject of the allegations is “capable of amounting to contempt.” In doing so I shall take into account such characteristics of a failure to comply with orders of the Tribunal as will constitute contempt in the nature of that which falls within the rubric of wilful disobedience as described above.

The relevant principles concerning referral consequent on a conclusion that it appears on the Tribunal’s own view that the respondent is guilty of contempt

  1. The above discussion does not extend specifically to circumstances where the Tribunal is required to consider whether “it appears…on its own view” that the respondent “is guilty of contempt” of the Tribunal. In considering what is meant by these words I will have regard to the context in which they appear. Section 73 of the Act creates two pathways in which to consider and determine whether a person is guilty of contempt of the Tribunal. The first permits the Tribunal itself to deal with the matter, and the manner in which it is to do so is created by the deemed application of the contempt provisions applying to the District Court as contained in the District Court Act 1973. Relevantly, section 199 of that Act is in the following term;

199 CONTEMPT

(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.

  1. It will be seen that section 199 uses the same language as is contained in section 73 of the Act, namely a reference, relevantly, to an allegation or an appearance to the Court on its own view that a person is guilty of contempt of court…. The section contemplates a process by which the person concerned is brought before the Court, informed of the charge, and required to make out a defence. Thereafter the Court may determine whether the charge is made out and, if so, make an appropriate order for punishment. It cannot be said that any conclusion that there is the appearance on the view of the Tribunal that a person is guilty of contempt necessarily involves the making of any finding of contempt, or indeed the making of any conclusion that contempt has been committed prior to the alleged contemnor before being brought before the Court, informed of the charge and given an opportunity to defend it. Otherwise this would be a hollow exercise. It follows that these circumstances must also apply to any consideration by the Tribunal given by reference to the provisions of section 73 (1) incorporating the provisions of subsection (4) (a). It must also follow that the same circumstances must apply to any consideration made by the Tribunal to a reference to the Supreme Court under subsection (5) because the same words are used in that subsection.
  2. Accordingly, when determining what is required to be considered when ascertaining whether it “appears to the Tribunal on its own view” that a person is guilty of contempt, I first take into account that to have the appearance as required it must be plain or clear or create the impression that the person is guilty of contempt. Secondly such a view must be held by the Tribunal member determining the matter.
  3. Of course, endeavouring to state the matter in these simple terms begs the question of the reasoning process that should be applied in determining that it is plain or clear or creates the impression that a person is guilty of contempt, or, to use the language in the subsection, “it appears….on its own view” that the person is so guilty. The use of the words “is guilty” is to be distinguished from the use of the words “may be guilty.” Accordingly, the appearance required is much more than a possibility of guilt. It seems that there must be an actual opinion held by the Tribunal member that the contemnor is guilty of contempt, but this involves something less than a positive finding to that effect or a concluded view to that effect. And perhaps, given the seriousness of the conclusion in the context of the very serious charge of contempt, something more than an opinion reached on the balance of probabilities may be appropriate in coming to that conclusion. I have not had the benefit of any submissions about this matter, but working on what I regard as first principles it seems more appropriate to me that the Briginshaw standard should be adopted. As I do not regard the circumstances in which the conclusion is required to be made as indicating a positive finding of guilt or the expression of a concluded view I do not regard the criminal onus as applying. In all the circumstances I conclude that it is appropriate to apply the civil onus but qualified by the more rigorous provisions contained in the Briginshaw standard in determining whether or not there is an appearance on my view that the respondent is guilty of contempt of the Tribunal. Seen in this way it is arguable that this requires a different approach to a determination of whether or not the conduct identified is capable of constituting contempt which is the test adopted in considering whether to refer a matter to the Supreme Court consequent upon an allegation having been made by another person. I shall proceed on this basis.
  4. I should add for completeness that the evidence concerning the failure of the respondent to comply with the identified orders of the Tribunal is contained in the findings of the Tribunal of non-compliance as set out in the published Decisions of the Tribunal against a background of Orders having been made which have not been the subject of any successful challenge. Nor have the findings themselves been the subject of any successful challenge. This evidence, coupled with the material contained in the Registrar’s section 78 Certificate referred to above results in all of the evidence concerning failure to comply with orders being based on reasons for decision and orders of this Tribunal. In these circumstances, there would be every justification in concluding beyond any reasonable doubt that the identified orders have been breached.

The nature and extent of the contempt of the respondent alleged by the applicant

  1. These matters are fully set out commencing at [6] to [10] of the earlier decision. The manner in which it was characterised by the applicant and conceded, at least in part, by the respondent is described in [11] and [12] of the earlier decision.
  2. At [91] of the earlier decision I concluded that:

It appears to me that the respondent’s conduct constituted by the remarks made by him in the publication referred to in paragraphs [7], [8] and [9] and in the statement referred to in paragraph [17] is capable of constituting contempt. I have described this conduct earlier in [83].

  1. As is clear, it is conduct which scandalises the Tribunal. Allegations that Tribunal members are corrupt or lack integrity, propriety or impartiality or that they bow to the wishes of outside individuals go beyond permissible critical assessment of a decision or even the conduct of a tribunal member.
  2. In Gallagher v Durack [1983] HCA 2 Gibbs CJ, Mason, Wilson and Brennan JJ said;

The facts of the matter, so far as it is necessary to state them, are as follows. On 11 May 1982 Keely J., a judge of the Federal Court of Australia, held that the Australian Building Construction Employees and Builders Labourers’ Federation (the “Federation”), the applicant, Mr Gallagher (who is the Federal Secretary of the federation), and one, B. Boyd, were guilty of contempt of court. On 18 May 1982 Keely J. fined the Federation $15,000 for the contempt and directed that the fine be paid by the Federation by an agent properly authorized in writting by the Federation to make that payment on its behalf. On the same day Keely J. sentenced the applicant to two months’ imprisonment and fined Mr. Boyd. On 21 July 1982 a Full Court of the Federal Court unanimously dismissed an appeal by the Federation but by a majority (Evatt and Deane JJ., Smithers J. dissenting) allowed the appeal by the applicant and set aside the finding that he was guilty of contempt of court and the sentence of imprisonment which had been imposed on him. The court also unanimously allowed the appeal by Mr. Boyd. On the same day, and after judgment had been given in the Federal Court, a number of journalists, television cameramen and others assembled outside the office of the Federation at Carlton seeking an interview with the applicant in respect of the judgment of the Full Court of the Federal Court. At about 1.00 p.m. on that day the applicant, accompanied by others, came out of the office of the Federation and was interviewed. No reliance was placed by the respondent on anything said by the applicant in that first interview. The applicant then distributed to those present copies of a resolution passed by the federal management committee of the Federation. The first sentence of the resolution read as follows:

“The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.”

At the request of a representative of a television channel, the applicant consented to a second interview and to answer further questions. One of the questions was as follows:

“Mr. Gallagher, what is your reaction (or response) to the Court’s decision?”

To this question the applicant replied:

“I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs . . . I believe that that has been the main reason for the court changing its mind.”

It has been held by the Federal Court that in making that statement, the applicant was guilty of a contempt of Court. (at p242)

3. Before us counsel for the applicant submitted that the Federal Court, in convicting the applicant, relied entirely on the principles stated by Rich J. in R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 and that those principles imposed an undue and unwarranted restriction on the freedom of speech and discussion and that this Court should adopt the principle, accepted by the Supreme Court of the United States in cases arising under the Constitution of the United States, that a publication should not be held to be a contempt of court unless it amounts to a “clear and present danger” to the administration of justice. (at p243)

4. The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419 and R. v. Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 before R. v. Dunbabin; Ex parte Williams was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority”: per Dixon J. in R. v. Dunbabin; Ex parte Williams (1935) 53 CLR, at p 447. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”: R. v. Fletcher; Ex parte Kisch, per Evatt J. (1935) 52 CLR, at p 257. There is no reason to reconsider these principles in the light of the American authorities, which are of course decided on constitutional provisions which have no counterpart in Australia, and which in any case lay down rules not dissimilar to those of the common law. (at p243)

5. It has not been shown that the Federal Court ignored or misapplied proper principles in the present case. The statement by the applicant that he believed that the actions of the rank and file of the Federation had been the main reason for the court changing its mind can only mean that he believed that the court was largely influenced in reaching its decision by the action of the members of the union in demonstrating as they had done. In other words, the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence. What was imputed was a grave breach of duty by the court. The imputation was of course unwarranted. In considering whether this statement was calculated to lower the authority of the court, and whether it was necessary in the interests of the ordered and fearless administration of justice to fine or imprison the applicant, the Federal Court was entitled to consider, as it did, the fact that the applicant is a union leader, very well known to the Australian public, holding an important office in a large national trade union, and the fact that some members of the public might have been the more ready to accept the assertions of the applicant as true because of their awareness that on some occasions employers and even governments are influenced by the pressure which trade unions are able to bring to bear. Further, it was open to the court to consider that the publication by the applicant of the resolution of the Federal Management Committee was relevant to the question whether the applicant’s statement was a deliberate one, for the court was entitled to think that even if the resolution, by itself, was ambiguous, the circumstances showed that it was to the same effect as the applicant’s own statement. On the other hand, in favour of the applicant, it was right to consider that the offending statement was made in the course of a second interview which the applicant might not have expected to be held, that it was only one of a number of statements made, and that the newspapers and television channels responsible for giving publicity to the applicant’s statement were not themselves charged with contempt of court. However, there is not the least ground to suppose that the Federal Court overlooked these matters, since all the relevant facts are referred to in the course of the judgments. One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J. and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is however obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered. (at p244)

6. There can be no doubt that the offending statement amounted to a contempt of court, and if repeated was calculated to undermine public confidence in the Federal Court. The question whether it was necessary, in order to vindicate and protect the court’s authority, to imprison the applicant called for the most anxious consideration, but no ground has been shown to justify our granting special leave in order to interfere with the decision made by the Federal Court. (at p245)

  1. Having regard to the expansive matters referred to in the above extract from the judgement of the High Court of Australia, it is now appropriate to consider the substance of the material which was brought to the attention of the respondent in connection with the show cause hearing. The material which is summarised in [8] of the earlier decision accuses the named Principal Member of this Tribunal of inappropriately having released from prison a person who has killed a hitchhiker and thereby given access to that person to spread aids in a woman’s prison and to rape the inmates. There is also a reference to the consequential effect of the actions of this Member on young boys pimped out to gay men by their lesbian mothers. The material which is contained in [17] of the earlier decision accuses the person responsible for the selection of NCAT panels to determine discrimination matters, presumably the President, to have selected members who support “the homosexual agenda” either by reason of political conviction or sexual orientation. The Members appointed to determine these matters are said to be subservient to the interests of the President of the Anti-Discrimination Board and presumably influenced by him or her.
  2. All of this material constitutes “baseless attacks on the integrity or impartiality of” the members of the Tribunal. The respondent has insinuated that the Tribunal has “bowed to outside pressure in reaching its decision(s).” In the case of the named Principal Member, not only is there a baseless and scurrilous attack on her integrity, but the material smacks of allegations that in some way this member has connived at the inappropriate release of persons from imprisonment in circumstances where such persons are prone to cause harm to others.
  3. It may be understood that in the real world judicial officers and tribunal members must be prepared to deal with, live with, and deflect undue and inappropriate criticism of their work in the courts and tribunals, especially at the hands of the popular press eager to sensationalise a particular story about a particular individual or matter. It has been said that judicial officers must take a robust view of criticism levelled against them. Notwithstanding this, I am satisfied that the material concerning the named Principal Member to which I have referred as published by the respondent on his website in the circumstances to which I have referred is such that it is capable of constituting contempt of this Tribunal in the manner set out above. I am satisfied also that the respondent published the material referred to in [17] of the earlier decision and that that material constitutes contempt in the manner set out above. There is no basis to assume that there is any appropriate excuse available to the respondent for this conduct.
  4. Accordingly, I intend referring this matter to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.

The nature and extent of the contempt of which, on my view, the respondent appears to be guilty

  1. In addition to the published material referred to in [17] in the earlier decision, the conduct of the respondent which it appears to me on my own view demonstrates that the respondent is guilty of contempt of this Tribunal is that which is constituted by his failure to obey the several orders of this Tribunal which I have particularised in [92] of the earlier decision as amplified by [93].
  2. I have set out earlier in these reasons for decision an extract from the decision of the High Court of Australia in Mudginberri. It is sufficient for present purposes that I repeat the observations of the Court that; “the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.” I repeat also my summary of the effect of that decision in determining whether or not there has been conduct either by way of a deliberate commission or omission as constituting a failure to comply with orders which may be characterised as contempt which I set out in Bott, extracted above;

Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a “deliberate commission or omission which is in breach of an … order (which will thereby)… constitute … wilful disobedience unless it be casual, accidental or unintentional.” “Deliberate” where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had “no direct intention to disobey the order”. Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful “even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was “through carelessness, neglect, or even in dereliction of his duty”

  1. It is sufficient only to refer to the number of instances in which the respondent failed to comply with orders of the Tribunal requiring him to desist from the further publication of unlawful material and to pay monies if he had failed to furnish the appropriate apologies which are referred to in the narrative contained in the earlier decision as evidencing a deliberate failure to comply with orders of the Tribunal and which constitutes wilful disobedience of those orders. Such failure to comply cannot be characterised as being casual, accidental or unintentional. Indeed, the respondent has professed in material published on his website as recorded in several of the decisions of this Tribunal that he had no intention of complying with the orders. It is difficult to imagine a more patent example of a contumelious intentional and deliberate disregard of the orders of this Tribunal than that which has been undertaken by the respondent in the several sets of proceedings which are the subject of these reasons for decision.
  2. The only excuse sought to be proffered by the respondent is that some of the material was published without his knowledge on his website by Luke McKee, and that at some stage he had given Mr McKee consent to publish that material. This has been a constant theme of the respondent by way of excuse proffered in the various proceedings conducted by the Tribunal over many years. To date the respondent has not produced one scintilla of evidence referred to in any of the decisions of the Tribunal, or in the course of the proceedings which I have conducted that would corroborate in any way any participation by Mr McKee in the publication of the material the subject of these proceedings. In these circumstances it is difficult to accept what was said by the respondent as constituting any form of reasonable excuse as referred to in section 73 (2) of the Act. Indeed, as the respondent readily acknowledged on many occasions, he ultimately remained responsible for the material published on his website. The evidence is that the offensive material was published under his name, and presumably he basked in the reflective glory of that material, whether written by Mr McKee or not.
  3. I have no hesitation in concluding that it appears on my own view that by reason of these matters the respondent is guilty of contempt of this Tribunal in the manner referred to in section 73(5) of the Act and that it is appropriate that his conduct be referred to the Supreme Court accordingly.

Conclusion and orders

  1. For the reasons which I have earlier set out I conclude that it is appropriate that I refer the conduct of the respondent as described in [17] and [91] of the earlier decision, and the conduct which is referred to in [92] and [93] of the earlier decision to the Supreme Court of NSW pursuant to the provisions of section 73 (5) of the Act.
  2. In determining to refer these additional matters to the Supreme Court of NSW under section 73 (5), I am conscious also that the voluminous litigation between the applicant and the respondent has occupied the time and resources of this Tribunal over many years. The respondent blames the applicant for continuing to embark upon some malicious campaign to vilify and harass him by continuing to make complaints about him to the President of the Anti-Discrimination Board who in turn initiates proceedings against him in this Tribunal. The respondent fails to understand, and may be incapable of understanding, that if he desisted in continuing to publish material of the kind which is to be found on his website, the applicant would have nothing to complain about and the seemingly endless proceedings before this Tribunal would cease. Whether or not the respondent derives some inexplicable pleasure out of seeing himself as being victimised by the applicant in the course of proceedings conducted in this Tribunal, it is clear that the respondent never has had and never will have any particular concern that he should cease conducting his unlawful activities in the publication of his material on his website or any concern that he should obey the orders and directions of this Tribunal as being lawfully binding upon him. Perhaps the status and presence of the Supreme Court of NSW will have some greater effect. This represents an additional reason why it is appropriate to refer the matters which I have already described to the Supreme Court.
  3. I hereby make the following orders;
  1. I hereby refer to the Supreme Court of NSW for determination the allegation that the respondent John Christopher Sunol is guilty of contempt of this Tribunal made by the applicant Garry Burns. Such contempt is constituted by the publication by the respondent of the material described in [7], [8], and [9] in Burns v Sunol [2018] NSWCATAD 78, and which I have found is capable of constituting contempt of the Tribunal The referral is made pursuant to the provisions of section 73 (5) of the Civil and Administrative Act.
  2. I hereby refer to the Supreme Court of NSW for determination pursuant to the provisions of section 73 (5) of the Civil and Administrative Act the conduct of the respondent John Christopher Sunol which I describe hereunder, because it appears to me on my own view that by reason of that conduct the said John Christopher Sunol is guilty of contempt of this Tribunal. The conduct is;
  1. the publication by the respondent of the material described in [17] in Burns v Sunol [2018] NSWCATAD 78
  2. the failure of the respondent to comply with the orders of this Tribunal particularised in [92] and in [93] in Burns v Sunol [2018] NSWCATAD 78.

For ease of understanding I set out again the contents of [92], to which I have added reference to the citations of the several Decisions of the Tribunal

  1. the failure of the respondent to make payment of the monies ordered to be paid on 22 January, 2014 as set out in paragraph [38] above. Burns v Sunol [2014] NSWCATAD 2; (22 January 2014)
  2. the failure of the respondent to refrain from publishing further material “to the same or similar effect” by order of the Tribunal made on 22 January 2014 as found in paragraph [50] above. Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)
  3. the failure of the respondent to refrain from publishing materials to the same or similar effect on any website controlled by him as ordered by the Tribunal on 14 May 2014 as set out in paragraph [43] above constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014)
  4. the failure of the respondent to make payment of the monies ordered to be paid on 14 May 2014 as set out in paragraph [44], [49] and [50] above. Burns v Sunol [2014] NSWCATAD 61; (14 May 2014), Burns v Sunol [2014] NSWCATAD 62; (14 May 2014), Burns v Sunol [2014] NSWCATAD 63; (14 May 2014)
  5. the failure of the respondent to refrain from publishing material as identified in paragraph [54] above pursuant to order made on 25 June 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Burns v Sunol [2015] NSWCATAD 131 (25 June 2015), Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)
  6. the failure of the respondent to refrain from publishing material as identified in paragraph [56] above pursuant to an order made on 24 September 2015 constituted by the publication of material identified in subsequent Decisions of the Tribunal. Sunol v Burns [2015] NSWCATAP 207 (24 September 2015), Burns v Sunol [2016] NSWCATAD 16 (21 January 2016), Burns v Sunol [2016] NSWCATAD 74 (19 April 2016), Burns v Sunol [2016] NSWCATAD 81 (29 April 2016), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2017] NSWCATAD 215 (30 June 2017), Burns v Sunol (No 2) [2017] NSWCATAD 236 (31 July 2017), Burns v Sunol [2018] NSWCATAD 10 (10 January 2018)

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

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This Woman Has To Pay $19,000 For Sharing A Defamatory Video On Facebook

Posted on 

A man who is a member of a little-known religious order has been awarded $18,880 for defamation after a woman shared a YouTube video on her Facebook page that made claims about him and his religion.

Australian man David Bottrill is part of the Ordo Templi Orientis (OTO) fraternal religious order, which follows the writings of the late British occultist and magician, Aleister Crowley. According to Bottrill, members of OTO in Australia number around 100.

Bottrill claimed Katrina Bailey had defamed him by sharing a video on her Facebook page in mid-2017 that suggested he was a member of a satanic and pedophile group, who used his job to import children into Australia to facilitate pedophilia.

On Friday, the Australian Capital Territory Civil and Administrative Tribunal (ACAT) found in Bottrill’s favour, saying Bailey had defamed him, and ordering her to apologise, take down the post, and pay $18,880.

The website for Ordo Templi Orientis in Australia.
Ordo Templi Orientis

The website for Ordo Templi Orientis in Australia.

The video was posted on Bailey’s Facebook page under the name “Kat A Klayton” – an online alias she has used in the past to rail against the the LGBTIQ anti-bullying program the Safe Schools Coalition. Bailey also goes by the alias “Anirtak 76” (her first name backwards).

But Bailey did not create the video she now has to pay $18,880 for posting on Facebook, nor did she write the text that went with it.

It was instead published on YouTube by Teresa van Lieshout, a serial political candidate who once announced she was running for a West Australian election by uploading a video in which she danced around her living room to AC/DC’s “Thunderstruck”, and held up signs with her electoral priorities written on them.

Van Lieshout, who describes herself as a “Christian teacher/writer/political candidate” was briefly endorsed by the Palmer United Party, and in 2015 was subject to an arrest warrant for defying a court order. She most recently ran as an independent in the Batman by-election.

Bottrill has previously successfully sued Michael Borusiewicz for publishing defamatory material with similar imputations, but had claims against van Lieshout and two others dismissed in the same lawsuit. He also won a claim for religious discrimination in the ACAT earlier this year.

Teresa Van Lieshout / Via youtube.com

Teresa van Lieshout dances to announce her candidacy for the Canning by-election.

Both Bottrill and Bailey were self-represented in the tribunal hearing in February.

Tribunal member Louise Donohoe SC found Bailey was responsible for publication by omission – meaning that she had been informed that the video was defamatory but failed to take it down.

Evidence tendered to the tribunal included screenshots of comments Bailey had made in Facebook groups including Pauline Hanson’s One Nation Supporters discussion page, and another called Pedohunters Anonymous Australia.

Bailey attempted to submit as evidence documents containing 117 printed URLs, along with her own editorial comment on the content found at those web addresses – but Donohoe said it was inadmissible.

“The document in the URL address may be evidence,” Donohoe said. “However, in this form submitted by the respondent, the URL documents were inadmissible.”

Bailey was told she could download some of the documents found at the URLs and submit them as evidence instead, but she chose not to.

Bailey put forward multiple defences for publishing the video – including justification, absolute privilege, reporting proceedings of public concern, honest opinion, and others – but they all failed.

In rejecting Bailey’s attempted defence of triviality, Donohoe remarked: “It is difficult to imagine more egregious defamatory imputations.”

The evidence submitted by David Bottrill.
ACAT

The evidence submitted by David Bottrill.

Donohoe did not accept Bailey’s argument that there were many examples of similar material about Bottrill and about OTO on the internet.

“A falsehood, no matter how many times it may be repeated, remains a falsehood,” she wrote.

Donohoe said Bottrill had given evidence that he had tried to have the material removed but couldn’t, and the way it kept circulating on the internet with a “grapevine” effect kept the issue alive and “reinvigorated the hurt”.

“Although he did not invite the Tribunal to do so, the Tribunal comfortably draws the inference from his evidence that the applicant finds himself in the difficult and analogous position of having to try to put out multiple brush fires and that, in this regard, he was fighting a losing battle,” Donohoe found.

She said it had been “extremely distressing and hurtful” for Bottrill to have enquiries made about him to his workplace as a result of the defamatory post.

Legal academic and defamation expert David Rolph told BuzzFeed News he expects an increase in defamation actions between two people who are not public figures or media outlets.

“Because social media technologies have changed the way people communicate, it’s much easier for people to be publishers to the world at large, or at least a very broad audience,” he said.

“I think we’ll see these sorts of cases litigated more and more in the future.”

He added that the Bottrill case was interesting as it was litigated in the Civil and Administrative Tribunal, not the courts.

“One of the most frequent criticisms of defamation is that it’s a rich man’s game, it’s difficult to bring proceedings if something bad is said about you in public,” he said.

“What’s interesting is the ACT and South Australia are the only two jurisdictions in Australia that allow their small claims provisions to deal with defamation claims. It’s much more accessible and cost effective for people who want to bring these sorts of proceedings.”

The ACAT has a cap of $25,000 on awards in civil disputes.

CORRECTION

Bottrill had a claim against Teresa van Lieshout and two others dismissed in an earlier lawsuit. An earlier version of this article said that he had successfully sued her and others.

Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.

Contact Lane Sainty at lane.sainty@buzzfeed.com.

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Burns v Corbett: Courts, tribunals, and a new implied limit on state legislative power

BY STEPHEN MCDONALD

In Burns v Corbett, the High Court unanimously held that State tribunals that are not State courts cannot exercise judicial power with respect to any of the classes of matters listed in ss 75 and 76 of the Constitution. This is an important limit on the capacity of the States to provide for the exercise of judicial power by non-court tribunals, and resolves an issue about which there was previously conflicting authority. (See, eg, Attorney-General (NSW) v 2UE Sydney Pty LtdQantas Airways Ltd v LustigCommonwealth v Anti-Discrimination Tribunal; and the decision of the Court of Appeal of NSW in Burns v Corbett).

The decision has significant ramifications for the design of State tribunals. If States choose to confer judicial power on their tribunals, there will be certain matters that will necessarily remain beyond those tribunals’ jurisdiction. For example, such a tribunal could not hear an anti-discrimination claim involving residents of different States – the kind of matter in issue in Burns v Corbett – as that is the kind of matter referred to in s 75(iv) of the Constitution.

As will soon be apparent, there is a good deal of complexity in the reasons given for this decision and in the underlying constitutional concepts. The justices of the High Court have provided us with a smorgasbord of interesting judgments.

It is not possible to deal exhaustively with all the issues in a blog post such as this. This post discusses some of the key constitutional provisions and concepts, and the important divergences in the reasoning between the justices in explaining why State tribunals cannot exercise jurisdiction in matters of the kinds identified in ss 75 and 76.

An important divergence in the reasons for reaching the same result

A majority of the Court, comprising Kiefel CJ, Bell, Gageler and Keane JJ, held that Chapter III of the Commonwealth Constitution contains an implied limit on State legislative power: State Parliaments have no power to confer judicial power with respect to the matters in ss 75 and 76 on non-court State tribunals.

The remaining justices (whom I shall refer to as “the minority”, despite their agreement with the orders proposed by the majority), comprising Nettle, Gordon and Edelman JJ, held that, while State Parliaments did not lack legislative power to confer such jurisdiction on non-court State tribunals, the operation of State laws which purported to do so was excluded by a law of the Commonwealth Parliament — s 39(2) of the Judiciary Act 1903 (Cth) — which invests federal jurisdiction in State courts. The minority held that the Commonwealth Parliament, by enacting s 39(2), had evinced an intention that the only bodies capable of exercising judicial power in matters of the kinds listed in ss 75 and 76 of the Constitution should be Federal courts and State courts. For Nettle and Gordon JJ, a State law which conferred judicial power on non-court State tribunals in respect of matters of those kinds was inconsistent with the Commonwealth law, and so is invalid by operation of s 109 of the Constitution. For Edelman J, ss 38 and 39 of the Judiciary Act operated directly to exclude the jurisdiction of State courts.

Some relevant constitutional provisions and concepts

Section 75 of the Constitution confers original jurisdiction on the High Court of Australia in all matters of the five kinds there listed, while s 76 empowers the Commonwealth Parliament to make laws conferring original jurisdiction on the High Court in matters of the four kinds identified in that section. The term “jurisdiction” is used in the Constitution to refer to the “authority to decide” in the exercise of judicial power or, as Kiefel CJ, Bell and Keane JJ referred to it in Burns v Corbett, “authority to adjudicate”.

Each of the paragraphs of ss 75 and 76 identifies what might be called a “federal element” — a characteristic which might be thought to make it appropriate for adjudication by an independent federal judiciary. The classes of matters listed in ss 75 and 76 were referred to by Quick and Garran

as “matters of specially federal concern” (at ¶288). This is not a technical term; just a shorthand way of explaining why those matters were selected for inclusion in ss 75 and 76.However, there is an important distinction between exercising any jurisdiction in “matters of specially federal concern”, and exercising “federal jurisdiction”. “Federal jurisdiction” is a technical term, and it refers to the authority to decide which is conferred by the Commonwealth Constitution or by laws of the Commonwealth. By contrast, “State jurisdiction” is jurisdiction conferred by State law (Baxter v Commissioner of Taxation (NSW) at 1141; CGU Insurance Ltd v Blakeley at 349 [24]). Putting aside the appellate jurisdiction of the High Court, federal jurisdiction is limited to the matters identified in s 75 and 76. State law could also include jurisdiction in some of these kinds of matters (eg, matters involving suits between residents of different states, and matters arising under the Constitution).

The provision which is critical to the resolution of the issues raised in Burns v Corbett is s 77 of the Constitution. It provides:

With respect to any of [the kinds of matters identified in ss 75 and 76], the [Commonwealth] Parliament may make laws:

(i) defining the jurisdiction of any federal court other than the High Court;

(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii) investing any court of a State with federal jurisdiction.

It will be observed that s 77 says nothing in its terms about tribunals that are not Courts.

Sections 38 and 39 of the Judiciary Act were enacted pursuant to ss 77(ii) and (iii) of the Constitution. Sections 38 and 39 exclude the jurisdiction of State courts in relation to federal matters, and then (by s 39(2)) invest State courts with federal jurisdiction over those matters, subject to various conditions and restrictions (see Burns v Corbett at [24]-[25]).

The majority — reasoning of Kiefel CJ, Bell and Keane JJ

The joint judgment of Kiefel CJ, Bell and Keane JJ emphasised the exhaustive nature of Chapter III of the Constitution in various respects, and the negative implications that had been held to arise from it. The majority acknowledged that s 77(ii) itself “recognises the possibility that, absent Commonwealth legislation excluding the adjudicative authority that otherwise belongs to the State courts, that authority may continue to be exercised by those courts” (at [41]). However, the same was not true of non-court State tribunals.

Their Honours (at [45]) considered that:

the approach to the interpretation of Ch III, whereby the statement of what may be done is taken to deny that it may be done otherwise, is also apt to deny the possibility that any matter referred to in ss 75 and 76 might be adjudicated by an organ of government, federal or State, other than a court referred to in Ch III.

Chapter III expressly contemplates the exercise of adjudicative authority with respect to federal matters by:

  1. the High Court, exercising the (federal) jurisdiction conferred on it by the Constitution (s 75);
  2. the High Court, exercising the (federal) jurisdiction conferred on it by laws of the Commonwealth Parliament; (s 76);
  3. other federal courts created by the Parliament, exercising the (federal) jurisdiction conferred on them by laws of the Commonwealth Parliament (s 77(i));
  4. the courts of the States, exercising the (State) jurisdiction that otherwise belongs to them under the laws of the States (s 77(ii)); and
  5. the courts of the States, exercising the (federal) jurisdiction invested in them by the Commonwealth Parliament.

The majority considered that Ch III must be taken to be an exhaustive statement not only of the adjudicative authority of State courts but of any organ of government, federal or State. An important structural consideration supporting this conclusion was the scheme of appeals from State courts exercising federal jurisdiction, subject only to exceptions and regulations prescribed by the Commonwealth Parliament (see Burns v Corbett at [19], [49], [68], [70], [97]-[98]). That scheme would be undermined if States could invest judicial power in tribunals from which no appeal necessarily lay to a State court.

Kiefel CJ, Bell and Keane JJ held that they did not need to consider the s 109 inconsistency issue, because the question of whether an implication was to be drawn from Ch III was “logically anterior to any question as to the power of the Commonwealth Parliament to override such a conferral of adjudicative authority by a State Parliament” (at [4]).

The majority — additional reasoning of Gageler J

Gageler J, the other member of the majority, expressed general agreement with the conclusions of Kiefel CJ, Bell and Keane JJ, and “substantial” agreement with their Honours’ reasoning (at [69]). In contrast to the joint judgment, however, Gageler J explicitly considered the s 109 inconsistency argument first.

Gageler J’s judgment contains an instructive analysis of the operation of s 109 of the Constitution, particularly where it is suggested that a Commonwealth law impliedly excludes State laws within a particular field (at [80]-[93]). Gageler J explained that, in order for an inconsistency to arise between s 39(2) of the Judiciary Act and a State law conferring jurisdiction over ss 75 and 76 matters on a non-court State tribunal, the Commonwealth law must first be taken to legislate exhaustively within a particular “universe”. Whether it could do so depended upon the scope of the legislative power conferred on the Commonwealth Parliament.

Gageler J held that 39(2) of the Judiciary Act could not have a “negative penumbra” excluding jurisdiction from non-court State tribunals, because s 39(2) was enacted pursuant to s 77(iii) of the Constitution, and ss 77(ii) and (ii) referred only to State courts (at [93]). His Honour thus concluded that the Commonwealth Parliament had no power “to exclude the adjudicative authority of non-court State tribunals”.

For Gageler J, this conclusion strengthened the structural considerations in support of the Ch III implication, because it meant that “that question falls to be considered against the background of an absence of Commonwealth legislative power to achieve the same result”. If the Ch III implication were not drawn, there would be “a hole in the structure of Ch III” and “[t]he Commonwealth Parliament would have no capacity to plug it” (at [95]). If the Commonwealth Parliament had had power to exclude the jurisdiction of non-court State tribunals, then it might be said that the Ch III implication was unnecessary because — consistently with the apparent purpose of s 77(ii) and not inconsistently with the structure of appeals to the High Court under s 73 being subject to exceptions prescribed by the Commonwealth Parliament — the Commonwealth Parliament retained control over the organs capable of exercising judicial power in ss 75 and 76 matters.

The minority — reasoning of Nettle, Gordon and Edelman JJ

The minority justices, Nettle, Gordon and Edelman JJ, in three separate judgments, declined to recognise an implication from Ch III concerning State tribunals. Nettle and Gordon JJ each pointed out that the terms of s 77(ii) itself recognised that some state bodies (namely, State courts) could possess jurisdiction with respect to the matters identified in ss 75 and 76. As Gordon J neatly put it, “it follows that ‘federal control’ over jurisdiction in relation to [ss 75 and 76 matters] is not pre-ordained by the Constitution, whether in s 77 or elsewhere” (at [179]). Moreover, each of them pointed out that, historically, non-court State tribunals had exercised judicial power.

The minority justices also found that the Commonwealth had, by enacting s 39(2) of the Judiciary Act, evinced an intention to exclude non-court State tribunals from adjudicating ss 75 and 76 matters; and that it had legislative power to do so. As to the source of that Commonwealth legislative power, each of the minority judges took a different view.

Nettle J held that the power in s 77(iii), to invest the courts of the States with federal jurisdiction over ss 75 and 76 matters, carried with it an implied incidental power to exclude the jurisdiction of State tribunals (at [139]-[141]). This power was to be implied for essentially the same structural reasons that the majority referred to in support of the Ch III implication. It was necessary to avoid a situation where the Commonwealth Parliament was powerless to prevent non-court State tribunals exercising judicial power outside the integrated judicial system which Chapter III was intended to allow the Commonwealth Parliament to create.

Gordon J regarded ss 77(ii) and s 77(iii) together as supporting a law which provided, in effect, that only one or more of the courts identified in Ch III could deal with ss 75 or 76 matters (or some such matters) (at [195]). Her Honour also placed reliance upon the express incidental power in s 51(xxxix) (at [196]).

Edelman J considered that the power to exclude the jurisdiction of non-court State tribunals arose not as an incident of the power in s 77(iii) but rather as an aspect of the power in s 77(ii), to make exclusive the jurisdiction of any federal court (at [219]-[223]. Edelman J observed that the notion of “exclusive” jurisdiction usually connoted “jurisdiction exclusive of all other authority” (at [221]). However, that notion of exclusivity is difficult to square with the words used in s 77(ii) itself: “exclusive of that which belongs to or is invested in the courts of the States”. Edelman J, recognising this difficulty, relied on the drafting history of s 77(ii) to argue that it was intended to enable the Commonwealth Parliament to exclude the otherwise-concurrent jurisdiction of all State bodies in ss 75 and 76 matters (at [221]-[223]). Edelman J considered that this was simply a direct exercise of the power in s 77(ii) to exclude State jurisdiction, and so there was no need to invoke s 109 of the Constitution (at [208], [254]).

In substance, this appears to amount to reading the words “jurisdiction … which belongs to or is invested in the courts of the States” as meaning not the actual authority to adjudicate exercisable by State courts themselves, but jurisdiction of the kind that belongs to or is invested in the courts of the States. On this construction, the expression “which belongs to or is invested in the courts of the States” is treated as a long-hand way of describing all jurisdiction conferred on any body by State law. If that is what was intended, however, it is difficult to see why s 77(ii) should make reference to “courts of the States” at all; it might simply have said “State jurisdiction”, “non-federal jurisdiction” or “jurisdiction conferred by State law”. Moreover, the descriptive expression “belongs to or is invested in” seems more apt to describe the actual jurisdiction capable of being exercised by courts than a generic kind of jurisdiction.

It is suggested that a significant difficulty with relying (as Nettle and Gordon JJ did) upon any “incidental” power, whether express or implied, as a source of Commonwealth legislative power to exclude jurisdiction from non-court State tribunals, is that it would seem to allow the Commonwealth Parliament to enact a law that appears to exceeds the express limit of the power conferred by s 77(ii), namely to exclude the jurisdiction of State courts. Edelman J’s reasons did address this problem, but only by adopting what seems a rather strained approach to the construction of the text of s 77(ii). (It may be noted that Gageler J (at [76]) also considered, but rejected, that approach.)

A brief observation about the Kable doctrine in light of the majority reasoning in Burns v Corbett

The implication recognised by the majority in Burns v Corbett potentially has some relevance to the Kable doctrine. The Kable doctrine has previously been justified on the unsatisfactory basis that State courts must remain “fit receptacles for the investing of federal jurisdiction”, so that they cannot be given functions “incompatible with [their] role as a repository of federal jurisdiction”. (See, eg, Forge v Australian Securities and Investments Commission at 82 [82]; Attorney-General (NT) v Emmerson at 424 [40].)

However, as noted above, the concept of “federal jurisdiction” is concerned with the source of adjudicative authority, not the substantive nature of jurisdiction being exercised. The holding in Burns v Corbett, to the effect that only the judicial organs identified in Ch III may exercise jurisdiction in the “matters of specially federal concern” in ss 75 and 76 of the Constitution, allows the functional justification for the Kable doctrine to be repositioned slightly. Rather than the need to be “fit repositor[ies] for federal jurisdiction”, it can now be said that, given their special position in Ch III of the Constitution, State courts (but not necessarily non-court State tribunals) must retain their independence and institutional integrity so as to remain suitable organs to exercise judicial power in relation to “matters of specially federal concern”, irrespective of the source of jurisdiction.

Conclusion

The decision in Burns v Corbett, while reaffirming that there is no generalseparation of judicial power at the State level, has effectively extended the separation of judicial power in relation to matters of federal concern (the matters listed in ss 75 and 76 of the Constitution) to the States. It is now clear that Ch III of the Constitution exhaustively identifies the bodies that can exercise jurisdiction (authority to decide in the exercise of judicial power) in respect of such matters, namely federal and State courts.

It remains to be seen how State tribunal design will respond to this development.

 

Stephen McDonald is a barrister at Hanson Chambers who practises constitutional and administrative law, and an Adjunct at the University of Adelaide Law School

Suggested citation:  Stephen McDonald, ‘Burns v Corbett: Courts, Tribunals, and a New Implied Limit on State Legislative Power’ on AUSPUBLAW  (7 May 2018) <https://auspublaw.org/2018/05/burns-v-corbett-courts-tribunals/>

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John Sunol must show cause why he shouldn’t face Supreme Court contempt proceedings

Referral: Former Newcastle taxi driver John Sunol has until May 11 to show why he should not face contempt proceedings in the NSW Supreme Court after a history of online rants.
 Referral: Former Newcastle taxi driver John Sunol has until May 11 to show why he should not face contempt proceedings in the NSW Supreme Court after a history of online rants.

Joanne McCarthy – http://www.theherald.com.au

SINCE 2005 former Newcastle taxi driver John Christopher Sunol has been in trouble for his online rants against “gays and atheists”, the Sydney Mardi Gras, Muslims and complaints and findings against him by the NSW Civil and Administrative Tribunal.

Now he faces possible contempt action in the NSW Supreme Court – and a possible jail term – after a long history of failing to comply with tribunal orders and “contemptible”, incorrect and “abhorrent” blog allegations against a tribunal member in 2017.

Mr Sunol told a tribunal hearing that he did “not attack people, I debate ideas and philosophies only”, and he was the “victim of a campaign of harassment and vilification” being directed at him.

But tribunal member Acting Judge Francis Marks said Mr Sunol’s constant failure to honour apologies made to the tribunal, failure to remove and refrain from publishing unlawful material, and failure to pay $55,000 in penalties to anti-discrimination activist Garry Burns, “cast considerable doubt” on his undertakings to the tribunal.

“It appears to me, on my own view, that Mr Sunol has conducted himself in a manner which is capable of constituting contempt of this tribunal,” Mr Marks found in a decision on Tuesday, in which Mr Sunol was given until a hearing on May 11 to show cause why a contempt referral should not be made to the Supreme Court.

It appears to me, on my own view, that Mr Sunol has conducted himself in a manner which is capable of constituting contempt of this tribunal.

NSW Civil and Administrative Tribunal member Francis Marks

Judge Marks did not accept Mr Sunol’s submission that the blogs were written by another man. He found Mr Sunol’s online rants that he would “never accept” some tribunal orders or “be willing to apologise” to Mr Burns showed a “readiness to defy compliance” with tribunal orders that could be seen as deliberate.

In a rant in 2011 Mr Sunol said he was “speaking out because.. the homo-nazis and femi-nazis are taking away our right to speak against them”, and in a later post he said he believed “we are living in the last days for Christ returns”.

Mr Sunol has repeatedly declared his goal of “ridding Sydney of this Mardi Gras” which he described as a terrorist risk. He described the Anti-Discrimination Board as the “spearhead of the homosexual agenda in NSW”.

Judge Marks noted Mr Sunol claimed to have tertiary qualifications including a Bachelor of Social Science from Newcastle University, and postgraduate degrees from Wollongong University.

In 2014 Mr Sunol lost an appeal to have his taxi licence reinstated after the tribunal heard evidence of 17 complaints against him between 2003 and 2012, including that he fell asleep at the wheel and made “inflammatory comments” about religions and homosexuals to passengers.

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Blogger ordered to remove ‘hate speech’ against member of small religious order

A NSW-based blogger has been ordered to take down material from his site that described a small and mysterious religious order as a “satanic paedophile cult”. A Canberra tribunal found that the material was archetypal hate speech.

In January last year, David Bottrill complained to the ACT Human Rights Commission that he had been discriminated against because of his membership of the Ordo Templi Orientis.
He said blogger John Sunol operated a number of sites which had publicly vilified him on the basis of his religious conviction.
Mr Bottrill said the allegations made against him and the organisation were all untrue.

In the complaint, which was referred to the ACT Civil and Administrative Tribunal, Mr Bottrill said he wanted the pages removed and an apology. He later also asked for compensation.

In a decision published last month, the tribunal describes the blog posts as asserting that the Ordo Templi Orientis is a “satanic paedophile cult”, and that they had a picture of Mr Bottrill next to that description.

“In addition, ‘child rape’ and ‘boy murder’ are words used to describe [Mr Bottrill] and adherents of the OTO,” the tribunal said.

The tribunal found against the blogger and ordered he remove the posts and refrain from publishing similar content in the future.

Mr Bottrill did have the religious conviction he had described, the tribunal said, and Mr Sunol’s blog content would “incite, among other responses, hatred and contempt towards [Mr Bottrill]”.

“The acts ascribed to him and his religion were written in totally undisciplined language and with no attempt to provide any evidence that might warrant such claims. To use the vernacular, it is archetypal hate speech,” tribunal Senior Member Bryan Meagher SC said.

“As Mr Sunol, himself, said, ‘We all have our own rights to our beliefs and own religions, our own areas of theological belief. Mr Bottrill has his rights. I have my rights’.”

At the hearing, Mr Bottrill said the Ordo Templi Orientis was about 100 years old and that it had been created out of a collection of Masonic rights in Europe.

“Since about 1912 it’s been the main vehicle for promoting the religion of Thelema … It’s a religion based on revelations given to and then published by Aleister Crowley.”

The tribunal heard there were probably about 100 members of the order in Australia at any one time.

The tribunal referred to an earlier decision in a separate matter involving Mr Bottrill in which a Professor Douglas Ezzy from the University of Tasmania described the order as a small religious movement modelled on Freemasonry.

Professor Ezzy, a member of the Contemporary Pagan Studies Group and the American Academy of Religion, said he thought it was “extremely unlikely” that child sacrifice, paedophilia and cannibalism were “systemic or organisationally organised aspect” of the order.

Mr Sunol told the tribunal he did not write the offending post and therefor should not be held responsible. He said he took it down as soon as he became aware of it. He said he could not apologise to Mr Bottrill because he was a pentecostal Christian.

He also said the site had about 2400 hits a day and told the tribunal he was bankrupt, agreeing that he was immune from orders for the payment of money.

Mr Sunol eventually took the content down after Mr Bottrill contacted him.

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INNER WEST LIBERAL COUNCILLOR MS JULIE PASSAS ALLEGEDLY INCITED THIRD PARTIES TO HATRED OF HOMOSEXUALS

27 March 2018

Former councillor Julie Passas

In November of 2017 Ashfield gay man Daniel Comensoli raised a gay rainbow flag on his balcony to celebrate the “ YES “ vote in the Australian Marriage Law Postal Survey.

Julie Passas, a Liberal Councillor on the Inner West Council and resident of the Cecil Street Block where Mr Comensoli lived demanded the rainbow flag be taken down because she found it offensive to her religion and culture.

It was also alleged that Passas harassed the housemate of Mr Comensoli and pressured his neighbour to contact the owner of his unit informing that owner that they ( referring to Mr Comensoli and his room mate ) were “ not good people. “

It’s also alleged a note was slid under the door of Mr Comensoli’s unit by a man named Allan Jones in error as that note was meant for Passas unit and that Passas then encouraged the maintenance man to try and retrieve the note from under the door while Mr Comensoli was at home.

Mr Jones can be contacted on 0403-015-852 for verification.

Mr Comensoli was scared in his own home because of this pernicious conduct allegedly orchestrated by the well known gay jihadist Julie Passas.

Anti-Discrimination Campaigner Garry Burns has taken legal action against Passas under the Anti-Discrimination Act 1977 ( NSW ) where a Directions Hearing will take place at 12.30pm on Wednesday 28 March 2018 at Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

Mr Comensoli has made a statement along with a number of others in the unit block and all will attend the court and give evidence against Ms Passas over her alleged intimidation, stalking, harassment and unlawful vilification on the ground of homosexuality.

Mr Burns will subpoena all those who have signed letters and those letter writers will all have to attend court and be cross examined on what they’ve written and why and who encouraged them to write those letters.

Mr Burns alleges Passas has deliberately encouraged third parties to incitement of hatred against Mr Comensoli by getting neighbours and residents from outside the unit block to write letters that the rainbow flag hanging off Mr Comensoli’s apartment balcony was offensive.

Passas in her Affidavit to the President of the NSW Anti-Discrimination Board ( ADB ) stated she complained to the former Ashfield Commander about one of his male officers who she found offensive because unlike her he didn’t find the gay rainbow flag as offensive as the ISIS flag is a untruth because the Commander at the time was on leave.

The ISIS Flag and it’s believers calls for homosexuals to be killed by beheading and or be thrown off a roof top to their death.

Mr Burns said, “ Ms Passas you better hire yourself a good lawyer love because all of your well known homophobia is going to come back and bite you on your bottom like a pack of hungry piranha fish in a feeding frenzy and your duplicity will finally unravel like you’ve had a dose of uncontrolled flatulence.”

Mr Burns first met Ms Passas in 1993 when she was allegedly down in Ashfield Park in the early hours of the morning looking for homosexuals.

Mr Burns will also be a witness at the hearing because he has gone on the record by Affidavit setting out the events involving his knowledge of Julie Passas in 1993.

ENDS

Media Enquiries
Garry Burns
0407-910-309

Julie Passas
0419-206-855

Daniel Comensoli
0409-710-100

Otto Stichter
Solicitor for Passas
9798-9944.

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Sydney firm acts pro bono in HCA vilification case

Legal proceedings, scales of justice

A self-proclaimed “out loud and proud” law firm based in Sydney’s Newtown has appeared in the High Court of Australia on behalf of Garry Burns.

Mr Burns appealed to the HCA following a determination in 2016 that despite being a victim of homophobic vilification, he had no standing to pursue the matter in the NSW Civil and Administrative Tribunal because the alleged perpetrators were not residents of New South Wales.

The gay rights activist was attempting to sue political aspirant and Katter Party of Australia candidate Tess Corbett, who made comments in the Hamilton Spectator in 2013. Ms Corbett told the publication that she did not want “gays, lesbians or paedophiles working in my kindergarten” and associated homosexuals with paedophiles.

“Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights,” Ms Corbett was quoted as saying.

When Queensland’s Senate hopeful Bernard Gaynor later endorsed Ms Corbett’s statements, he was suspended him from the Katter Party Australia.

In January last year the NSW Civil and Administrative Tribunal found Ms Corbett’s comments had vilified homosexual people. She was ordered by the tribunal to place a public apology in the Sydney Morning Herald.

Mr Burns sought a court-imposed fine against the former candidate for the federal seat of Wannon in western Victoria when she failed to publish an apology.

On appeal, the Supreme Court of NSW said that the tribunal did not have the jurisdiction to deal with either Ms Corbett or Mr Gaynor. Mr Burns subsequently took the matter to the HCA.

Dowson Turco partner Nicholas Stewart (pictured) offered to represent Mr Burns pro bono for the costs aspect of his HCA appearance.

“This is a very technical matter and we are grateful for Garry’s instructions to act pro bono,” Mr Stewart said.

“Without Garry, the LGBTI community would be behind the times and the fact that his matter is before the highest court in our country is testament to his drive for justice for our community.”

The lawyers appeared before the court last week. [Outcome here].

Sonja Freeman, one of the lawyers at Dowson Turco, said that the firm had celebrated recent legal milestones for LGBTI rights, such as marriage equality and LGBTI rights in the Family Court. She noted that efforts to help Mr Burns’ vilification case were just as important.

“Garry Burns is a brave and unrelenting advocate of the Australian LGBTI community. He has fought tirelessly to prevent homophobic discrimination and to bring about a safer environment for the LGBTI community,” Ms Freeman said.

“We want to assist Garry to ensure that tribunals in NSW can assist victims of discrimination and vilification even when perpetrators are located interstate,” she said.

https://www.lawyersweekly.com.au/sme-law/22436-sydney-firm-acts-pro-bono-in-hca-vilification-case

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Same-sex marriage: ‘Profound’ shift in community sentiment in favour, HILDA survey says

Updated 2 Aug 2017, 7:48am

Australia’s longest-running annual lifestyle survey has revealed women are having second thoughts about whether a husband is for life, while support is growing for same-sex marriage.

The University of Melbourne surveys the same 17,000 people each year for the annual Household, Income and Labour Dynamics in Australia report (HILDA).

It found Australian attitudes were becoming more progressive, with 67 per cent of women and 59 per cent of men stating that homosexual couples should have the same marriage, parenting and employment rights as heterosexual couples.

“We’ve seen a very profound shift in attitudes to this statement,” report author Professor Roger Wilkins said.

In 2005, only 43 per cent of woman and 32 per cent of men agreed to the statement.

“It’s quite clear that community sentiment has shifted in favour of marriage equality,” Professor Wilkins said.

The survey noted a smaller percentage of agreement among immigrants, Indigenous Australians and lower-income earners.

The HILDA report was commissioned by the Federal Government and its release comes as the Coalition grapples with an internal push for a Parliamentary vote on same-sex marriage, rather than a plebiscite.

The Senate has rejected the plebiscite but conservative Liberal Party members insist the party should stick with the policy.

Liberal senator Dean Smith is drafting a private members’ bill to legalise same-sex marriage and MPs are expecting a partyroom debate on the issue when Parliament returns next week.

Meanwhile, same-sex relationships can now be legally recognised in South Australia by signing onto a special register.

Couples on the register will be provided legal certainty in areas such as entitlements and medical care.

It is also available to heterosexual couples in a de facto relationships and comes with a certificate of registration.

See how attitudes have changed over time

Here are some of the questions from the survey. A response of 1 indicated strong disagreement while 7 indicated strong agreement.

Question: Is it alright for an unmarried couple to live together even if they have no intention of marrying?

Males 2005 Females 2005 Males 2015 Females 2015
5.1 5.0 5.6 5.6

Question: Homosexual couples should have the same rights as heterosexual couples do?

Males 2005 Females 2005 Males 2015 Females 2015
3.3 4.0 4.8 5.3

Question: Children will usually grow up happier if they have a home with both a father and a mother?

Males 2005 Females 2005 Males 2015 Females 2015
5.8 5.1 5.2 4.4

Question: Is it alright for a woman to have a child as a single parent even if she does not want to have a stable relationship with a man?

Males 2005 Females 2005 Males 2015 Females 2015
3.5 3.7 4.3 4.6

‘Til death do us part?

The survey also found that on average, men agreed with the statement “marriage is a lifetime relationship and should never be ended”, however, women, on average, did not.

Question: Is marriage a lifetime relationship and should never be ended?

Males 2005 Females 2005 Males 2015 Females 2015
4.6 4.4 4.3 3.8

“This is, I guess, part of a broader tendency towards more traditional attitudes,” Professor Wilkins said.

“It’s always a good thing for men to be doing what they can to keep their partners happy.”

Professor Wilkins said the survey also revealed a desire for more gender equality in the home and workplace, but he noted the male respondents were more likely to stick to traditional views.

“I guess one explanation for that is that more progressive attitudes tend to improve women’s lot,” he said.

“So men, I guess, may be more reluctant to have progressive views because they may perceive it as harming their interests.”

Topics: marriagefamily-and-childrencommunity-and-society,australiavicmelbourne-3000

First posted 2 Aug 2017, 12:00am

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High Court challenge over controversial candidate Corbett

STORY – DENIS PETERS


THE case involving alleged vilification of homosexual people by former federal election candidate Tess Corbett of Lake Bolac has made its way to the High Court.

corbett

Bernard GayNor and Tess Corbett

The long-running case last fi gured in the New South Wales Court of Appeal in February where it was dismissed with a finding that the court did not have the relevant jurisdiction.

The case was originally taken to the NSW Anti-Discrimination Board by Sydney anti discrimination activist Garry Burns, after Katter Party of Australia candidate Ms Corbett, made comments in the Hamilton Spectator.

Ms Corbett told The Spectator in 2013 that she did not want “gays, lesbians or paedophiles working in my kindergarten.” Asked if she considered homosexuals to be in the same category as paedophiles, Ms Corbett replied “yes”. “Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights,” she
said.

Ms Corbett’s comments were later supported by Queensland Katter party Senate candidate and free speech advocate Bernard Gaynor. Ms Corbett stood down soon after the furore erupted. Mr Burns took the matter to the Anti- Discrimination Board, claiming that her comments incited hatred.

A NSW Administrative Decisions Tribunal upheld Mr Burns’ claim and Ms Corbett was ordered to publish an apology in the Sydney Morning Herald, but failed to comply.
Mr Burns then issued contempt of court proceedings against her. Mr Gaynor subsequently appealed the tribunal’s original decision.

The Court of Appeal in February stated that NCAT did not have jurisdiction to resolve Mr Burns’ complaints against Ms Corbett and Mr Gaynor. Mr Burns has now won leave to appeal that decision in the High Court. It is expected to be heard in October or
November this year.

He is seeking a determination as to whether the Administrative Decisions Tribunal had jurisdiction to resolve the complaint under s 49ZT of the Anti-Discrimination Act 1977 (NSW), whether the Appeals Panel of the NSW Civil and Administrative 20 Tribunal had jurisdiction to resolve the said complaint, and having regard to both those questions, are the judges’ orders valid.

Mr Burns will seek an order remitting the proceedings back to the Supreme Court of NSW in order to determine the contempt proceedings.

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Stop Unlawful Vilification Against Gays

donate1.png

My name is Garry Burns. I am a gay Australian Anti-Discrimination Campaigner who lives in Sydney.

I have been a victim of a gay hate crime on three separate occasions suffering serious injury on one of those occasions.

Gary Burns – Australian Anti-Discrimination Campaigner

My recovery has been to become a successful and prolific political activist against gay hate vilification / discrimination.

My work under the NSW Anti-Discrimination Act ( 1977 ) is public interest work. I do not seek any personal damages for myself but run those cases in the promotion of tolerance & understanding for GLBTI community.

I am now seeking special leave to the High Court of Australia in relation to Jurisdictional & Constitutional issue in relation to one of my matters.

I receive no public funding from the Federal or NSW Government’s to assist me in this work. I have been doing this work since 2002.

I fund all this work by myself but costs are escalating and I’m now seeking donations from those in the community who support the removal of discrimination / vilification against everyone regardless of sexual orientation.

I have costs to pay in relation to filing fees, ink , paper, travel expenses etc. There are fees to pay and I now need your help. I also have to pay part costs to a Plaintiff in a Court of Appeal decision that went against me earlier this year.

Any monetary help no matter how small is greatly appreciated.

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Gosford Anglican Church Lifts Billboard Game With YES YES To Marriage Equality

Gosford Anglican Church Lifts Billboard Game With YES YES To Marriage Equality

According to Bower, before last night’s 6 o’clock mass, 200,000 people had read the above post, while by Sunday morning that number had gone up to three quarters of a billion.

The Facebook page updated their profile photo yesterday to Australian Marriage Equality‘s rainbow Australia logo. They also updated their cover photo to a picture from the Republic of Ireland‘s Yes Equality campaign, which saw the notoriously religious nation vote ‘Yes’ in a referendum on same-sex marriage in 2015.

Gosford Anglican Church posted a pro-marriage equality billboard on Monday as the LNPmet to discuss the issue, and another on Friday, which pushed congregants to register with the Australian Electoral Commission.

In that post, Bower says that while he is opposed to the plebiscite, he will participate and vote yes. He also points to the unintended consequences of the huge amount of extra people now registered to vote – “several hundred thousand millennials start[ing] to participate in the political process“.

https://www.facebook.com/v2.10/plugins/post.php?app_id=&channel=https%3A%2F%2Fstaticxx.facebook.com%2Fconnect%2Fxd_arbiter%2Fr%2F0sTQzbapM8j.js%3Fversion%3D42%23cb%3Dfdabf0ae939738%26domain%3Dwww.pedestrian.tv%26origin%3Dhttps%253A%252F%252Fwww.pedestrian.tv%252Ff2ebc72e55acb98%26relation%3Dparent.parent&container_width=636&href=https%3A%2F%2Fwww.facebook.com%2Fanggos%2Fposts%2F1588650931165534&locale=en_GB&sdk=joey&width=640

In Bower’s sermon today, he tried to extrapolate the dynamics of the same-sex marriage debate already unfolding in this country by talking about people who fit neatly into mainstream society as ‘on a boat’, while those on the fringes in marginalised communities are outside of that boat.

He used that metaphor to talk about people being disrespectful of other’s views on social media, and the opportunity presented by – whodathunkit? – actually listening to each other.

It will be a conversation between people who are firmly in the boat, and people who have always been tossed around, on the margins, outside the boat in the storm.

No matter whether we agree with marriage equality or whether we think marriage is between a man and a woman, we oughta be able to be in our boat, but we need to be able to hear the cries of those who are being tossed around on the waves.

There is an insistent call to grow, to develop, to get out of the boat. When we get out of that boat and start engaging with people who may be different to us – who may have different views, who may have a different idea about what that boat should be like – when we start getting our feet wet, we’ll all of a sudden discover that we have begun to climb the mountain.

Australian Marriage Law Postal Survey

Australian Marriage Law Postal Survey

The Australian Bureau of Statistics is conducting the Australian Marriage Law Postal Survey.

To participate in the survey you need to be correctly enrolled by 24 August 2017.

If you have an enrolment enquiry, call the ABS on 1800 572 113 from 8am to 8pm local time seven days a week. An operator will be able to confirm your enrolment and your postal address for you over the phone.

Frequently Asked Questions

 

 

Mr GayNor had no chance of leave being granted – Looses AGAIN

Far-right campaigner Bernard Gaynor fails to overturn dismissal from army

Iraq war veteran-turned-reservist sacked from Australian defence force after saying he did not want gay people teaching his children

  Australian Associated Press – Friday 18 August 2017 
Bernard Gaynor says Australian Defence Force is ‘marching to the beat of a very political tune, drummed up by those who demand gay marriage’.
 Bernard Gaynor says Australian Defence Force is ‘marching to the beat of a very political tune, drummed up by those who demand gay marriage’. Photograph: Richard Wainwright, STR/AAP

Far-right campaigner Bernard Gaynor has lost his bid to overturn his dismissal from the Australian defence force.

Gaynor won a case against the ADF in 2015, claiming that sacking him in 2013 for publicly criticising policies aimed at reducing discrimination towards women and homosexuals had breached his right to free speech.

But the federal court later ruled the ADF was within its rights to sack the former major and Iraq war veteran-turned-reservist.

During a complex hearing at the high court in Brisbane on Friday, justices Anthony Keane and James Edelman were told the appeal against the chief of defence force’s decision hinged, in part, on military regulations about the suitability of officers to serve.

Those included following orders and official ADF policy, which prohibits its members from making political statements.

Gaynor had argued he was not in uniform, on base or assignment when he made the comments and as a reservist had a different status to a regular officer.

The high court justices, however, said that sufficient grounds to establish special leave to appeal the federal court ruling had not been made out and dismissed the appeal.

Gaynor had been sacked after saying he did not want gay people teaching his children, and engaged in a public stoush with high-profile transgender army officer Cate McGregor.

“The supposedly apolitical ADF is now marching to the beat of a very political tune, drummed up by those who demand gay marriage and take pleasure in ridiculing Christianity,” Gaynor said in a statement in 2015.

Gaynor was also dumped as a Queensland Senate candidate for Katter’s Australia party over his comments, and was recently affiliated with the anti-Islam Australian Liberty Alliance party.

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Garry Burns is an experienced Anti-Discrimination Campaigner under the Anti-Discrimination Act 1977 ( NSW ) in relation to homosexuality vilification complaints.

See Burns v Radio 2UE & Ors ( 2004 ) NSW ADT 267 or Burns v Corbett ( 2013 ) NSW ADT 227.

Pillow Biter” comment – Radio personality, John Laws

Just a quick check of the name of Garry Burns on LawLink case law will identify the many homosexuality vilification complaints he’s had substantiated in the Tribunal.

Garry Burns is not a lawyer but is happy to provide legal advice to those members of the NSW public who believe they may have been unlawfully discriminated against on the ground of homosexuality, either actual or perceived.

A homosexual vilification breach of s. 49ZT the complainant must establish four elements being ;

1. A public Act ;

2. Which incites ;

3. Hatred towards, serious contempt for or severe ridicule of a person or group of persons ;

4. On the ground of the homosexuality of the persons or members of that group.

Garry can be contacted on 0407-910-309 or 02-9363-0372 ;

Or leave a message for Garry and he will get back in touch with you.

Why pay thousands of dollars on a lawyer when Garry Burns can provide legal advice and also seek leave in the Tribunal to represent you without requiring a solicitor.

 
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Lunatic Luke McKee and his Mate

Luke McKee

This is Luke Mc Kee. The man is a computer hacking and mentally ill lunatic wanted for arrest by NSW Police for telecommunications offences. Anyone that has anything to do with McKee winds up being charged by NSW under the Crimes Act. 

I do not condone using headlines such as “Autisic Screeching”, the artists own words, not mine…

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Luke McKee’s mate – pleads guilty..

 

 

Luke McKee’s mate was charged again yesterday by NSW Police. It won’t be long before Luke McKee faces a magistrate or judge and is thrown in a prison cell with dirty pedophiles. Lets see how McKee goes in prison.

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McKee Ordered To Apologise

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McKee given 14 days to apologise

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.

Civil and Administrative Tribunal – New South Wales, within 14 days of the date of this decision, the defendant is to post the following *apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:-
Details on *apology can be found here with entire transcript Case Law NSW
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Sunol Pleads Guilty –

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John Sunol – Found Guilty

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.

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A celebrity stoush has erupted between cartoonist Larry Pickering and former NRL player Ian Roberts.

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Ex-NRL and Manly Sea Eagles star Ian Roberts calls out Larry Pickering for “homophobic” pillow-biter line

Gold Coast

Ex-NRL and Manly Sea Eagles star Ian Roberts calls out Larry Pickering for “homophobic” pillow-biter line

Outspoken cartoonist and blogger Larry Pickering at his residence in Bundall, Gold Coast — despite a terminal cancer diagnosis, he’s continuing to smoke, refusing chemotherapy and not backing down from speaking his mind. Photo: Regi Varghese

Outspoken cartoonist and blogger Larry Pickering at his residence in Bundall, Gold Coast — despite a terminal cancer diagnosis, he’s continuing to smoke, refusing chemotherapy and not backing down from speaking his mind. Photo: Regi Varghese

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ANTI-ISLAM ROBERT BALZOLA’S APPLICATION TO FIND GARRY BURNS IN CONTEMPT, “DISMISSED”

NSW Crest Civil and Administrative TribunalNSW Crest
New South Wales

Medium Neutral Citation:
Balzola v Burns [2016] NSWCATAD 246

Hearing dates:
6 July, 14 October 2016

Date of orders:
31 October 2016

Decision date:
31 October 2016

Jurisdiction:
Administrative and Equal Opportunity Division

Before:
Marks ADCJ, Principal Member

Decision:
Application dismissed

Catchwords:

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

Legislation Cited:

Civil and Administrative Tribunal Act, 2013, ss73, 102
District Court Act, 1973, ss199, 200, 202
Anti-Discrimination Act, 1977 (NSW)
Cases Cited:
Burns v Sunol [2015] NSWCATAD 178
Coward v Stapleton (1953) 90 CLR 573
Attorney-General v Leveller Magazine [1979] AC 440
Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW) [2003] NSW IRComm 387
Harkianakis v Skalkos (1997) 42 NSWLR22
Attorney-General v Times Newspapers [1974] AC 273
Bhagat v Global Custodians Ltd [2002] NSWCA 160
John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465
Scott v Scott [1913] AC 417
Fraser v The Queen [1984] 3 NSWLR 212
Re William Thomas Shipping Co Pty Ltd [1930] 2 Ch 368
The Queen v Payne [1896] 1 QB 577
Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354
Wilshire-Smith v Voltino Bros Pty Ltd [1993] FCA 138
Attorney General of NSW v Dean (1990) 20 NSWLR 650
Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389

Category:

Principal judgment
Parties:
Robert Balzola (Applicant)
Garry Burns (Respondent)
Representation:
Counsel:
J Loxton (Applicant)

Solicitors:
Robert Balzola and Associates (Applicant)
Garry Burns (Respondent in person)
File Number(s):
1410717,1410218,1410195
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 [2015] 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 [1941] VicLawRp 16; [1941] 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 [1909] 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 [1979] 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.

Particulars

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:

199 Contempt

(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) [2003] 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 [1979] 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 [1974] 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 ([1973] 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:

  1. Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.
  2. 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…..

  3. 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.

  4. 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 [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]:

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 [54]:

[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.

  1. 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).

…..

  1. 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.

    1. 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 [1913] 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 [1984] 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 [1974] 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 [1930] 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 [1896] 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 [1993] 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 [2008] NSWSC 389. The matter came before Hoeben J by summons filed by the Prothonotary seeking declarations in the following terms:

    1. 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:

    1. 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.”

    1. 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.

    Consideration

    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.

    Order

    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.
    Registrar

    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

    Featured post

    SYDNEY GAY RIGHTS ACTIVIST GARRY BURNS CLEARED BY MORWELL DETECTIVES OF COUNCILLOR CHRISTINE SINDT’S BLACKMAIL ALLEGATION

    MEDIA RELEASE
    FOR IMMEDIATE RELEASE
    SYDNEY GAY RIGHTS ACTIVIST GARRY BURNS CLEARED BY MORWELL DETECTIVES  OF COUNCILLOR CHRISTINE SINDT’S BLACKMAIL ALLEGATION

    20 October 2016

    Latrobe City Council councillor, Christine Sindt

    Councillor Sindt – Compares homosexuals to paedophiles

    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 :

    1. 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.

    ENDS

    MEDIA ENQURIES

    Garry Burns.
    02 -9363-0372
    0407-910-309.

    Councillor Christine Sindt
    0499-981-233.

     

    Featured post

    George Pell – time to tell the truth about your priests and Paedophilia

    George Pell - You disgusting man.

    George Pell – You disgusting man.

    http://www.9jumpin.com.au/show/60minutes/stories/2015/december/the-bell-tolls/

    English: Placard at the Protest the Pope Rally...

    English: Placard at the Protest the Pope Rally in London.

    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.

    http://www.9jumpin.com.au/show/60minutes/stories/2015/december/the-bell-tolls/

    SHAME SHAME SHAME

     

     

     

    Featured post

    Battling the ‘homosexual agenda,’ the hard-line religious right has made a series of incendiary claims. But they’re just not true.

    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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 FACTS
    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.

    THE ARGUMENT
    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 FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.

    THE FACTS
    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.

    THE ARGUMENT
    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.”

    THE FACTS
    “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”

    Australian Liberty Alliance

    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.

    OIP Staff

     

     

    Published by Out In Perth

    Featured post

    QLD’s ANTI-ISLAM LIBERTY ALLIANCE SENATE CANDIDATE BERNARD GAY-NOR CONTINUES TO COP A DOSE OF THIRD DEGREE BURNS

    20 November 2015

    Anti Islam, Anti Homosexual, Bernie GayNor

    “We will stop Islamisation of Australia?

    Sydney Anti-Discrimination Campaigner and public interest litigant Garry Burns lodged 3 homosexuality vilification complaint’s under the Anti-Discrimination Act 1977 ( NSW ) against former failed Katter Party Candidate and most recently appointed QLD‘s Liberty Alliance Senate Candidate , Bernard GayNOR.
    Mr.GayNor is the endorsed QLD Senate candidate for the Anti-Islam Liberty Alliance Group.
    “ A party of political goons resembling those of Germany in 1930’ said Burns.
    “ Mr.GayNor’s credibility for public office wouldn’t be capable of buttering a plate of parsnips for the dinner table” ,  alleged Mr.Burns.
    Mr.Gaynor is known for publishing the below pernicious statement in relation to homosexuals on his Twitter ( fully sic ).
    “ I wouldn’t let a gay person teach my children and I am not afraid to say it”.
    On the 14 October 2015 Mr.Burns proceedings against Mr.GayNor were dismissed. ( Burns v Gaynor ( 2015 ) NSWCAT AD 211)
    Mr.GayNor published the following day on his Website at http://bernardgaynor.com.au/ncat-ruling-protects-freedom-from-lgbt-attack/#respond ( sic )
    “ Yesterday was a great day : a day of victory” !
    Mr.GayNor goes on to attack the integrity of the Anti-Discrimination Board ( ADB ) of NSW and it’s President Stepan Kerkysharian and makes a number of derogatory statement’s in relation to Mr.Burns motives for the lodging of those complaint’s. ( In part he said )
    “ The truth is that Gary Burns has been riding a gravy train facilitated by Stepan Kerkysharian’s Thought Police. He has lodged the vast majority of homosexual vilification complaints in the history of New South Wales Anti-Discrimination Board.
    It is a joke that Stepan Kerkysharian has allowed this abuse of the law”.
    Mr.Burns said ; “ There is no gravy train or abuse of the Anti-Discrimination Act 1977 (  NSW ). The legal action I have taken against this Anti-Islam , Anti- Homosexual and Un-Australian failed political candidate is warranted because I allege Mr.Gaynor has breached the Anti-Vilification Provisions of the Anti-Discrimination Act 1977 and that act once substantiated will be unlawful ”.
    Mr.GayNor is represented Anti-Islam Campaigner and Immigration Lawyer Robert Remo Balzola.
    Mr.Burns has lodged an appeal against the decision of Burns v Gaynor ( 2015 ) NSWCATAS 211 ( Burns v GayNOR ).
    In Mr.Burns’s view Member Patten appears to have incorrectly applied the decision of Dow Jones and Company Inc v Gutnick 210 CLR 575 , which resulted in him incorrectly finding that his application under the Anti-Discrimination Act 1977 ( NSW ) was misconceived because , in his view , Mr.Gaynor did not perform a public Act in NSW.
    “ This is bad law and it will be overturned on Appeal and Mr.GayNor will have to come back before the Tribunal where all complaint’s lodged by me will be heard. Mr.GayNor is going to cop a dose of third degree Burns because just like a hungry white pointer shark in a feeding frenzy I’ve got hold of Mr.Gaynor’s leg and I’m not going to let go until his bone is bloodied and bare ”, ( figuratively speaking )  said Mr.Burns.
    “ Anti-Islam , Anti- Homosexual Australians like Bernard William GayNor are just likes crabs in a bucket.The good news is crabs can’t crawl out of a bucket and just as Mr.Gaynor  will go nowhere in the end. This imagery reflects Mr.Gaynor to a tee’ , concluded Mr.Burns.
    ENDS
    Featured post

    Katter Australia Party cancels Bernard Gaynor’s bid for Senate preselection over Twitter gay slur | The Courier-Mail

    Gaynor's Gay slurs - Dumped from Katter Party

    Gaynor’s Gay slurs – Dumped from Katter Party

    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.

    Source: Katter Australia Party cancels Bernard Gaynor’s bid for Senate preselection over Twitter gay slur | The Courier-Mail

    Featured post

    Bernard gaynor

    ANTI-ISLAM , ANTI-HOMOSEXUAL LIBERTY ALLIANCE CANDIDACY HAS A TOMBSTONE MENTALITY
    FOR IMMEDIATE RELEASE
    Australian Defence Force Ensign

    Australian Defence Force Ensign (Photo credit: Wikipedia)

    26 October 2015
    Bernard Gaynor
    “ Anti-Islam , Anti-Homosexual and former failed Senate Candidate for the Katter Party ,  Bernard Gaynor is attempting to win a seat in the Australian Senate via an Anti-Islam platform of fear , loathing and hatred ”,  alleges Anti-Discrimination Campaigner Garry Burns.
    Mr.Gaynor is now the Liberty Alliance Candidate for Queensland. Mr.Gaynor was the failed Senate Candidate for the Katter Party in the last Federal Election who was allegedly stood down over anti-gay comment:
    Bernard Gaynor Tweeted : “ I wouldn’t let a gay person teach my children and I am not afraid to say it”.
    Mr.Gaynor made the original tweet in defence of KAP candidate in Victoria Tess Corbett who compared gay rights to giving pedophile rights.
    Ms.Corbett withdrew her application for endorsement.
    Mr.Gaynor , a well known Anti-gay campaigner has joined up with a well known Anti-Islam Immigration Solicitor , Robert Remo Balzola in attempt to get his job back in the ADF.
    “ It’s allegedly been reported that Mr.Gaynor lost his commission in the Australian Defence Forces because of his Un-Australian and pernicious public views in relation to transgender women and homosexuals. Does Australian in 2015 need another right wing political party of bigots like that of One Nation peddling their own form of hatred” ? , ask Mr.Burns.
    “ Obsessive is a term for a psychiatric disorder – it’s for those who have nothing else in their life , but their obsession. Liberty Alliance as a Political Party is a dangerous group of pernicious misfits as it’s candidacy is built on the deliberate disruption of social harmony and this in turn will turn Australian against Australian creating a “TOMBSTONE MENTALITY “ . It’s message as a political party is clearly one of endorsing the limited act of violence against Muslim Australians ”, said Mr.Burns.
    Mr.Burns is so concerned about the Website of Bernard Gaynor – Key Issues facing Australians he has written to the NSW Commissioner of Police Mr.Scipione.  Mr.Burns’ letter has been forwarded to the Bias Crimes Unit for review and assessment.
    ENDS
    English: The logo of the Australian Greens pol...

    English: The logo of the Australian Greens political party. (Photo credit: Wikipedia)

    Featured post

    Audio Recording: ”Luke Mckee is BS artist & a Media Whore” From ”Nothing But the Truth”

    McKee gets booted off a live radio program

    McKee gets booted off a live radio program

    Source: Audio Recording: ”Luke Mckee is BS artist & a Media Whore” From ”Nothing But the Truth”

    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.

     

     

    Featured post

    One of my abusers – Meet Steve Wright

    Inline images 1

    “ Mr.Wright you would not win any Gregory Peck look a like contents because you are a very unattractive dude”.

    Featured post

    I was treated “like I meant nothing” after my partner died

    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.

    Featured post

    Transgender air officer wins top Queensland honour

    ​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.

    Source: Transgender air officer wins top Queensland honour

    Featured post

    ANTI-ISLAM , ANTI-HOMOSEXUAL LIBERTY ALLIANCE CANDIDACY HAS A TOMBSTONE MENTALITY

    MEDIA RELEASE

    ANTI-ISLAM , ANTI-HOMOSEXUAL LIBERTY ALLIANCE CANDIDACY HAS A TOMBSTONE MENTALITY
    FOR IMMEDIATE RELEASE
    26 October 2015
    “ Anti-Islam , Anti-Homosexual and former failed Senate Candidate for the Katter Party ,  Bernard Gaynor is attempting to win a seat in the Australian Senate via an Anti-Islam platform of fear , loathing and hatred ”,  alleges Anti-Discrimination Campaigner Garry Burns.
    Mr.Gaynor is now the Liberty Alliance Candidate for Queensland. Mr.Gaynor was the failed Senate Candidate for the Katter Party in the last Federal Election who was allegedly stood down over anti-gay comment:
    Bernard Gaynor Tweeted : “ I wouldn’t let a gay person teach my children and I am not afraid to say it”.
    Mr.Gaynor made the original tweet in defence of KAP candidate in Victoria Tess Corbett who compared gay rights to giving pedophile rights.
    Ms.Corbett withdrew her application for endorsement.
    Mr.Gaynor , a well known Anti-gay campaigner has joined up with a well known Anti-Islam Immigration Solicitor , Robert Remo Balzola in attempt to get his job back in the ADF.
    “ It’s allegedly been reported that Mr.Gaynor lost his commission in the Australian Defence Forces because of his Un-Australian and pernicious public views in relation to transgender women and homosexuals. Does Australian in 2015 need another right wing political party of bigots like that of One Nation peddling their own form of hatred” ? , ask Mr.Burns.
    “ Obsessive is a term for a psychiatric disorder – it’s for those who have nothing else in their life , but their obsession. Liberty Alliance as a Political Party is a dangerous group of pernicious misfits as it’s candidacy is built on the deliberate disruption of social harmony and this in turn will turn Australian against Australian creating a “TOMBSTONE MENTALITY “ . It’s message as a political party is clearly one of endorsing the limited act of violence against Muslim Australians ”, said Mr.Burns.
    Mr.Burns is so concerned about the Website of Bernard Gaynor – Key Issues facing Australians he has written to the NSW Commissioner of Police Mr.Scipione.  Mr.Burns’ letter has been forwarded to the Bias Crimes Unit for review and assessment.
    ENDS
    Garry Burns
    Anti-Discrimination Campaigner
    02 -9363-0372
    0407-910-309.
    Featured post

    Cr CHRISTINE SINDT : “ THEY’LL MAKE POOFTERISM ( sic ) COMPULSORY NEXT “

    14 October 2015
    On the 30 June and 1 July 2015 Sydney Anti-Discrimination Campaigner Garry Burns lodged two alleged homosexuality vilification complaints under the Anti-Discrimination Act 1977 with the NSW Anti-Discrimination Board ( ADB ) against Cr Christine Sindt over her publishing of statement’s to her Facebook page that Mr.Burns was “ a gay child sex activist ” and that homosexuality equates to the criminal act of pedophilia and other derogatory statements which targeted male homosexuals.
    Cr Christine Sindt is a La Trobe City Councillor who lives in Morwell in Victoria.
    Mr.Burns alleges Cr Sindt posted statements on her Facebook page , which vilifies him unlawfully and homosexual people in general.
    Some of the statements Cr Sindt published to her Facebook page were : ( fully sic )
    Gordon Briggs: “ They’ll be making poofterism compulsory next “.
    Robert Gomez : “ They ( homosexuals ) deserve the last rights “.
    Mike Brown : “ I hardly think same sex marriage between consenting ADULTS , should be mentioned in the same context as your local priest trying to bugger the choirboy”.
    The President wrote to Cr Sindt on the 10 August 2015 asking her to provide a response to Mr.Burns allegations.
    Cr Sindt ignored the President’s request to respond until a second letter was sent.
    Cr Sindt was due to respond to the President by the 15 October 2015 but has ask for a further extension until the 10 November 2015 , making the length of time for her to respond to the President more than 3 months.
    The President’s delegate has refused Cr Sindt’s request for a further extension because that request is unreasonable and unfair on Mr.Burns.
    Garry Burns said , “ Clearly , Cr Sindt only has contempt and indifference for the NSW Anti-Discrimination Board ( ADB ) and for me personally because of homosexuality but I can assure this Respondent she will face court whether I have to drag her there kicking and screaming by her golden locks ”. No one is above the law. This is the lesson Cr Sindt will learn”.
    Cr Sindt commented on a media release published to her Facebook page in relation to Mr.Burns: “ Gay Activist And Accused Muslim Terrorist Preach Tolerance”.
    Cr Christine Sindt said in reply : “ Strange Bedfellows”.
    Mr.Burns is seeking the aggregate damages under the Application for the harm ,  distress and hurt the statement’s published on Cr Sindt’s Facebook page caused him personslly.Those statement’s brought irreparable damage to Mr.Burns public profile.
    “ If Cr Christine Anne Sindt thinks I’m going to run away like some timid new – born burmese kitten she better run herself a little reality check because the sharks are out and the waters about to get a little bloody ”, ( figuratively speaking ) , said Mr.Burns.
    ENDS
    Contact:
    02 -9363-0372
    0407-910-309.
    Featured post

    Anti-Islam Solicitor Robert Balzola loses against encounter with Mr.Burns. Appeal Dismissed.

    NSW Crest

    Civil and Administrative Tribunal

    New South Wales

    Medium Neutral Citation:
    Sunol v Burns [2015] NSWCATAP 207
    Hearing dates:
    4 September 2015
    Date of orders:
    24 September 2015
    Decision date:
    24 September 2015
    Jurisdiction:
    Appeal Panel
    Before:
    The Hon D Cowdroy OAM QC, Principal Member
    Dr J Renwick SC, Senior Member
    Decision:
    Appeal dismissed.
    Catchwords:
    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 [2006] NSWCA 349
    Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A
    Attorney-General v Nottingham Corporation [1904] 1 Ch 673
    Burns v Sunol [2015] NSWCATAD 131
    Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
    Hanson v Radcliffe UDC [1922] 2 Ch 490
    Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851
    Sunol v Collier [2012] NSWCA 14
    Sunol v Collier (No 2) [2012] NSWCA 44
    Texts Cited:
    None
    Category:
    Principal judgment
    Parties:
    John Christopher Sunol (Appellant)
    Gary Burns (Respondent)
    Representation:
    Robert Balzola, solicitor, by leave for the Appellant.
    Gary Burns (Respondent in person)
    File Number(s):
    AP 15/42897
    Publication restriction:
    None
    Decision under appeal
    Court or tribunal:Civil and Administrative TribunalJurisdiction:Administrative and Equal Opportunity DivisionCitation:[2015] NSWCATAD 131Date of Decision:25 June 2015Before:J Wakefield, Senior Member; J Schneeweiss, General Member; M O’Halloran, General MemberFile Number(s):1410384

    REASONS FOR DECISION

    Facts

    1. 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 [2015] 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.
    2. 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.
    3. 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.

    1. 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.
    2. 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.
    3. 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.

    Preliminary Issue

    1. 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:
    1. who was the intervener in a matter involving the Appellant, namely Sunol v Collier [2012] NSWCA 14; see also Sunol v Collier (No 2)[2012] NSWCA 44; and
    2. who was the moving party in a matter involving the respondent, namely Attorney-General v 2UE Sydney Pty Ltd and Burns [2006] NSWCA 349.
    1. Each case involved constitutional or jurisdictional questions.
    2. 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.

    Tribunal findings

    1. 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.

    1. 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.
    2. 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

    1. 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 [7], 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.

    1. 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)

    1. 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”.
    2. 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”.
    3. 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.
    4. 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:

    (a)…

    (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, ….

    1. 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.

    1. 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.
    2. 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 [1922] 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.
    3. 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.
    4. Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack[1924] 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.
    5. 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 [1904] 1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council [1915] 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.

    1. Here, the terms of s 108 of the Act amply support the orders made.
    2. 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.
    3. 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.

    1. 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))

    1. 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.
    2. 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

    1. 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.
    2. 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.
    3. 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.
    4. 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”.
    5. 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.

    Website control

    1. 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.
    2. 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”.
    3. 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.
    4. 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) [2006] 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 [49] ‘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 [2005] VCAT 1159 and Jones v Toben [2002] 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) [2006] said at [50]:

    “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 [2012] 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 [2012] at [95] and Sunol v Collier (EOD) [2006] at [49].

    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

    1. 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.
    2. In Sunol v Collier (No 2) [2012] 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 [13]). Further at [70] 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 [2003] 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.

    1. 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.

    “Bad faith”

    1. 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.
    2. Accordingly, it follows that the challenges to the Tribunal’s orders do not succeed.

    Orders

    1. 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.
    Registrar

    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.

    Featured post

    QPS officers march in uniform for the first time at Brisbane Pride Festival

    Uniformed Queensland Police officers will march in the Brisbane Pride Festival for the first time on Saturday, September 19 2015.

    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.

    Featured post

    Luke McKee – Aspergers Syndrome

    I have recently become aware of a disorder that answers a lot of questions as to Luke McKee’s anti-social aspergersbehaviour 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)

    Diagnostic Criteria for 299.80 Asperger’s Disorder

      1. Qualitative impairment in social interaction, as manifested by at least two of the following:
        1. 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
        2. failure to develop peer relationships appropriate to developmental level
        3. 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)
        4. lack of social or emotional reciprocity
      2. Restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least one of the following:
        1. encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity of focus
        2. apparently inflexible adherence to specific, nonfunctional routines or rituals
        3. stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)
        4. persistent preoccupation with parts of objects
      3. The disturbance causes clinically significant impairment in social, occupational, or other important areas of functioning.
      4. 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).
      5. 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.
    Featured post

    Luke McKee – Professional Victim Syndrome?

    Hi All

    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.

     

     

    Featured post

    Uniformed Queensland police to march in Brisbane Pride for the first time

     The start of the 2014 Brisbane Pride rally.
     The start of the 2014 Brisbane Pride rally. Photo: Michelle Smith

    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.

    http://www.brisbanetimes.com.au/queensland/uniformed-queensland-police-to-march-in-brisbane-pride-for-the-first-time-20150829-gjaq42.html

    Featured post

    Anti-Islam Solicitor Robert Balzola loses another encounter…..

    Anti-Islam Solicitor Robert Balzola loses another encounter in the Tribunal with Anti-Discrimination Campaigner Garry Burns.

    NSW Crest

    Islam Hater Balzola Looses Again

    Islam Hater Balzola Looses Again

    corbett

    Civil and Administrative Tribunal

    New South Wales

    Medium Neutral Citation:
    Corbett v Burns [2015] NSWCATAP 172
    Hearing dates:
    12 August 2015
    Date of orders:
    17 August 2015
    Decision date:
    17 August 2015
    Jurisdiction:
    Appeal Panel
    Before:
    Boland J ADCJ (Deputy President)
    Decision:
    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.

     

    Catchwords:
    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 [2015] VSC 294
    Jackson v NSW Land and Housing Corporation [2014] NSWCATAP22
    Metwally v University of Wollongong [1985] HCA 28, 60 ALR 68, 59 ALJR 481
    Texts Cited:
    Australian Civil Procedure 10th ed (Cairns)
    Cross on Evidence, Heydon JD
    Category:
    Procedural and other rulings
    Parties:
    Tess Corbett (aka Therese Maree Corbett) (Applicant)
    Garry Burns aka Gary Burns (Respondent)
    Representation:
    Counsel:
    Not applicableSolicitors
    Robert Balzola and Associates (Applicant)
    K & L Gates (Respondent)
    File Number(s):
    AP 15/47082
    Decision under appeal
    Court or tribunal:Administrative Decisions TribunalJurisdiction:Administrative ReviewCitation:[2013] NSWADT 227Date of Decision:15 October 2013Before:M Chesterman, Deputy PresidentD Kelleghan Non-Judicial MemberA Lowe Non-Judicial MemberFile Number(s):131029

    REASONS FOR DECISION

    Introduction

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.

    1. I discern the following issues were raised in the submissions made in interlocutory applications now before the Tribunal:
    1. 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.
    2. 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?
    3. 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?
    4. 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.
    5. 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?
    6. 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?
    7. 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

    1. 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.

    1. An application for an extension of time is an interlocutory application as defined in s 6 of the Civil and Administrative Tribunal Act.
    2. 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.
    3. 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]

    1. 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).
    2. 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 [2014] NSWCATAP 22 at [8]. 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.

    Background

    1. 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.
    2. By letter dated 23 April 2013 the President of the Board referred the respondent’s complaint to the ADT.
    3. 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.
    4. The ADT, having satisfied itself that the applicant had notice of the proceedings, heard the matter in her absence on 3 October 2013.
    5. 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.
    6. 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.
    7. In its decision dismissing the appeal, the appeal panel noted at [17] 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.
    8. 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.
    9. 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”.
    10. 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”.
    11. 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.
    12. 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.

    Discussion

    1. 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?

    1. 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.
    2. 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:
    1. that she should obtain legal representation;
    2. that the respondent had filed material which was potentially adverse to her; and
    3. if she did not appear the Tribunal may make a decision adverse to her.
    1. 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 [2015] 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?

    1. 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.

    1. 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.

    :

    1. 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”.
    2. 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.
    3. In the present contempt proceedings the respondent’s solicitors name him as “applicant” using the spelling “Garry” for his first name.
    4. 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.
    5. 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”.
    6. 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.

    1. 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.
    2. 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”.
    3. 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.
    4. 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 [5170] ). I also take into account the discussion in Metwally v University of Wollongong [1985] 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.

    1. 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.
    2. 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.
    3. 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.
    4. 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

    1. 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[1990] HCA 30, 93 ALR 479 at [2]:

    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 [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 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 [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

    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 [4], Nanschildv Pratt [2011] NSWCA 85 at [39] 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 [7];

    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 [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; 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 [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] – [59].

    Discussion – extension of time to appeal
    1. 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:
    1. The appellant has only recently obtained the services of legal advice to assist in her matter on a pro bono basis.
    2. It is in the interests of justice that a decision fundamentally stained by manifest denial of procedure fairness be remedied.
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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).
    6. 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.
    7. 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?

    1. 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.
    2. 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.

    1. Mr Balzola in his submissions in reply at [36] 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.

    1. 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.
    Registrar

    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.

    https://www.caselaw.nsw.gov.au/decision/55d15391e4b03e53d026a0df

    Former Stannies priest jailed over historic sex assaults – JACINTA CARROLL

    St Stanislaus' College, Bathurst.

     St Stanislaus’ College, Bathurst.

    A FORMER St Stanislaus’ College priest, teacher and dorm master will spend at least three and a half years in jail for the historic sexual assault of a student under his care.

    Glenn Michael Humphreys, now 64, was sentenced on two indictments on Thursday in Sydney’s Downing Centre District Court.

    The first indictment, eight counts of indecent assault to which he pleaded guilty, related to the assault of a student under his care at St Stanislaus’ in 1982.

    The second indictment – to which he pleaded not guilty but was later found guilty by a jury – included seven counts of indecent assault and one of sexual intercourse without consent, but had no connection to the Bathurst school.

    On Thursday, Judge Conlon lifted non-publication orders that had been in place during the trial, saying he saw “no reason to maintain them”.

    Humphreys was attached to St Stanislaus’ College between 1978 and 1982 in various roles, including teacher and dorm master. The assaults against the victim occurred over a five-week period in 1982.

    Agreed facts revealed the victim had been a boarder at the school when he was called to Humphreys’ room at lights out one night.

    Humphreys, who was dorm master at the time, got the student to sit down and listen to music. Humphreys told the student he looked tense and needed a massage. He told the student to take off his top before massaging his back with oil.

    The student later left and returned to bed.

    One week later, the student was again called to Humphreys’ room where again he massaged his back before instructing the student to lay on his back.

    Humphreys removed the student’s pyjamas, which made him feel “vulnerable and exposed”, and massaged his legs before brushing his penis and testicles and masturbating him. He then said to the student “it’s getting late, go back to bed”.

    Similar incidents occurred over the next few weeks, including Humphreys forcing the student to masturbate him and Humphreys performing fellatio on the student.

    While no threat was made against the victim, Judge Conlon said Humphreys had abused a position of trust to groom the victim. He said at the time of the offence, Humphreys was a 29-year-old man responsible for the welfare of students who took advantage of his position of authority.

    In sentencing, Judge Conlon said the offender was now a 64-year-old man whose only conviction on record was in the District Court in Perth on four charges of unlawful indecent assault, for which he served a total of 22 months’ imprisonment.

    Since his release, the court heard, Humphreys had undertaken treatment.

    In a document tendered to the court in April, Humphreys detailed the stresses which were on him at the time of the offending conduct and spoke about his lack of awareness of skills in setting and maintaining boundaries.

    However, Judge Conlon said this was something he found difficult to understand, saying he thought Humphreys’ boundaries “would have been set in stone when he undertook his vows, including the vow of chastity”.

    The court also heard that since his release from jail in Western Australia, Humphreys has been living with aged members of the religious community and enjoying the social support of priests of the religious order.

    A psychiatrist’s report given to the court spoke of Humphreys’ progress and said he was a below average risk of reoffending. Humphreys’ pre-sentence report also said he was in a low risk category of reoffending, relative to other sex offenders.

    References and testimonials provided to the court told how his life’s work was for “the care of others, particularly those in less fortunate circumstances”. The references said Humphreys was held in “high esteem” by all who came in contact with him.

    Reverend Burke, who has known the offender since 1974 and visited him in jail in Western Australia, said while in custody he was dedicated to helping fellow inmates.

    In sentencing, Judge Conlon found Humphreys’ lack of offending for 32 years and his service to the community meant he was unlikely to reoffend.

    While he did not accept the offender pleaded guilty to the charges relating to Bathurst at the earliest opportunity, he said the timing of his plea still carried some utilitarian value.

    Humphreys was convicted on both indictments and sentenced to an aggregate term of seven years and six months in jail, expiring on December 19, 2025. A non-parole period of three years and six months will expire on December 19, 2021.

    Judge Conlon recommended Humphreys be jailed in a minimum security facility.