Author Archives: Garry Burns

About Garry Burns

Gary Burns is an Australian anti-discrimination campaigner. He successfully tested the homosexual vilification provisions of the NSW Anti-Discrimination Act 1977 with a complaint of personal homosexual vilification against broadcaster John Laws and Sydney radio station 2UE that concluded in his favour in 2002.[1] Burns went on to front public interest cases against high profile figures and media establishments for unlawful homosexual vilification.

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Lawyer linked to ‘anti-mosque’ campaigns able to practice again

www.lawyerweekly.com.au

A Sydney-based lawyer who has been connected to various anti-mosque campaigns has regained his privilege to practice law following an attempt by the Council of the NSW Law Society to have him suspended.

In the matter Balzola v Council of the Law Society of NSW, solicitor Robert Balzola was alleged to have misappropriated client trust funds, caused deficiencies in trust monies, falsified trust records and breached various requirements of the Legal Profession Act 2004, and the Legal Profession Uniform Law (NSW).

Mr Balzola was also alleged to have misled trust account investigator Simon Ward during the course of his investigation of Mr Balzola’s practises.

The Council of the Law Society of NSW called for the suspension of Mr Balzola’s practising certificate in July 2017, alleging that Mr Ward’s probe suggested that the solicitor was using trust money to bolster his law firm and pay his annual salary. The initial suspension period was set to the year ending 30 June 2018.

The Law Society NSW noted there had been a complaint made against Mr Balzola the year prior, in 2016, after he helped a group of individuals oppose the construction of a mosque in Melbourne, and was involved in other similar campaigns in Sydney and Canberra, according to SMH.

The publication noted that trust money deposited by community campaigners was being held in Mr Bazola’s firm’s general account without their permission, and that there were discrepancies in account statements he provided.

The court heard investigator Mr Ward accuse Mr Balzola of manipulating 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,” he added.

The matter against Mr Balzola came before Justice Des Fagan on 4 August 2017 because of a dispute between Mr Bazola and his lawyers, and Council of the Law Society NSW about which of the parties should be required to file their evidence first. Justice Fagan made orders in that regard and urged for the parties to move forward quickly.

“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,” Justice Fagan said during the court proceedings.

“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.”

Despite the urging, the proceedings were repeatedly adjourned at the Law Society’s request, court documents reveal.

As per a judgment dated 4 June 2018, lawyers for Mr Balzola argued that a 56-day period the Law Society had to vary the immediate suspension from the time it notified him had expired. Meanwhile, the Law Society upheld that the 56-day period didn’t run while the immediate suspension was placed on hold by the stay.

“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,” Justice David Davies said in delivering his judgment in the Supreme Court of NSW last month.

“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 theLegal Profession Uniform Law (NSW) on 20 July 2017 has expired.”

Justice Davies reiterated that “no explanation had been offered about why steps were not taken more promptly to have the proceedings brought on for hearing, the correspondence asserts, without denial by the Law Society, that the proceedings were adjourned at the Law Society’s request from September 2017 until February 2018”.

“In those circumstances, the obligation was on the Law Society to explain why that course was requested. The request tends to minimise any fault on behalf of the plaintiff in not having the proceedings brought on for hearing more promptly,” Justice Davies said.

Justice Davies concluded that since the 56-day period had expired without any action, the temporary suspension has lapsed.

“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 s82,” Justice Davies said.

“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.

“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.”

Based off those circumstances Justice Davies ruled that Mr Balzola’s immediate suspension of his practising certificate has expired. Justice Davies also awarded costs for part of the proceedings to Mr Balzola.

“ A defendant to publication of defamation on his or her Facebook Page can be liable as a “ secondary “ publisher of those comments because of his or her participation.”

Plaintiff wins $100K in defamation case after arguing Defendant liable for defamatory comments in Facebook post

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Thursday, July 26, 2018

Angus Macinnis, Director of Dispute Resolution at Stevens Vuaran Lawyers, discusses the recent District Court of South Australia defamation case of Johnston v Aldridge [2018] SADC 68 where the Plaintiff won damages assessed at $100,000, including aggravated damages, after the Plaintiff argued the Defendant was liable for defamatory statements made by other Facebook users who commented on the Defendant’s original post. 

Angus Mcinnis Crop

To avoid social media liability, it’s likely that you DO have to read the comments

“Never read the comments” is often said to be one of the cardinal rules of the Internet – indeed, if you need reminding of the importance of the rule, the Internet will helpfully supply you with T-shirts and cross-stitch patterns so that you don’t forget.

However, whenever there is a rule, there will be exceptions which prove the rule. One important exception is that if a business allows comments on its website (or has a Facebook page which allows comments to be posted) it seems that someone will have to read the comments to identify (and if necessary, remove) comments. The reason for this is that even where the business is not the author, comments can give rise to legal liability for the business.

Case of defamatory Facebook comments

The point has been illustrated in a recent South Australian case involving a claim for defamation arising from Facebook posts. The plaintiff not only relied on what the defendant had posted on Facebook, but also relied on defamatory statements made by other Facebook users who commented on the defendant’s original post.

The plaintiff argued that the defendant was liable for the comments as a “secondary” publisher, because by making the original Facebook post, the defendant had “participated” in the publication of the comments by creating the occasion for the comments to be made.

The defendant argued that he had no control over the authors of the comments and that “in any event they were so numerous as to make it ‘impracticable’ for him to remove them”. As the printout of the comments ran to some 190 pages, the court did agree that the comments were “voluminous” but held that although “considerable inconvenience might have been involved”, the inconvenience was “not so great as to make it unrealistic or unreasonable” for the defendant to monitor the comments, particularly as the evidence showed that the defendant recognised that the original post might attract “inappropriate comments”. By making such a post, said the court, “the defendant must be taken to have accepted the responsibility to monitor [the comments] and remove those which were inappropriate or suffer the consequences irrespective of the inconvenience involved”.

The defendant also argued that deleting comments might have created a backlash against the defendant’s views. This argument received short shrift from the court, with the court explaining, “that it was politically inexpedient from [the defendant’s] point of view to delete the comments can be accepted, but political expediency on its own provides no defence to secondary publication.”

Application to businesses on Facebook

The same answer would be given to a business which decided that it was “commercially inexpedient” to delete posts made by customers on Facebook or a website in case that created a backlash against the business. (The underlying dispute between the plaintiff and the defendant had both commercial and political aspects, but the case would have been decided the same way had the dispute involved ordinary commercial statements).

Of course, the fact that businesses can be liable for statements posted by customers (or other people external to the business) on their Facebook pages is not new. In 2011, the Federal Court of Australia considered the issue of who had “published” Facebook and Twitter posts in the context of considering whether a company called Allergy Pathway had breached prior orders of the Court which prevented the company from making misleading statements.

Although the Facebook and Twitter posts had apparently been posted by customers of Allergy Pathway, the Federal Court found that because Allergy Pathway had knowledge of the posts, and also the ability to remove the posts, Allergy Pathway had “published” the posts (even if it had not authored them). To that extent, the recent South Australian case simply extends liability for publication from posts made by others (as considered in the Allergy Pathway case) to comments made by others as well.

Lessons for online publishing

The lesson in all of this is that laws which apply to publishers (which include not just the defamation or misleading and deceptive conduct examples discussed here, but also intellectual property laws and anti-discrimination laws) apply just as much on the Internet, and just as much on social media platforms, as they do to traditional publications.

If your business is using social media for promotion, then your business is in the business of publishing, and if your business does not know much about the law of publishing, you should make it your business to find out. Although liability for secondary publication can be avoided if a publisher “does not know, and could not with the exercise of reasonable diligence have known” of defamatory publication, the need for “reasonable diligence” means that ignorance is much more likely to be expensive than it is to be bliss.

Perhaps the last word in all of this belongs to Henri de Toulouse-Lautrec, who is reported to have said, “I paint things as they are. I don’t comment. I record.” Would sticking to painting, rather than posting on social media, be a good approach to managing liability? For the record, we regret that we must answer that question with a firm, “no comment”.

Angus Macinnis has a broad commercial practice with a focus on dispute resolution, and in particular, on employment and work health and safety law, and intellectual property law. He advises employers and employees on all aspects of employment law, from drafting contracts and employment policies, to dealing with employment related disputes, to dealing with employment and safety regulators.

He has a particular interest in the employment law aspects of social media use and has published in this area in publications including the Law Society Journal, The New Lawyer, and the Internet Law Bulletin, as well as providing regular contributions to AHRI’s HRM Online website. He is a regular speaker at conferences for MCLE providers including the Law Society of New South Wales and the University of New South Wales and also provides training to employer clients in areas including anti-discrimination law.

In the intellectual property area, Angus advises in relation to copyright and trade mark disputes, as well as “trade dress” and passing off disputes. Contact Angus at angus@stevensvuaranlawyers.com

Religious freedom review enshrines right of schools to turn away gay children and teachers

Jewel TopsfieldBy Jewel Topsfield

Religious schools would be guaranteed the right to turn away gay students and teachers under changes to federal anti-discrimination laws recommended by the government’s long-awaited review into religious freedom.

However the report, which is still being debated by cabinet despite being handed to the Coalition four months ago, dismisses the notion religious freedom in Australia is in “imminent peril”, and warns against any radical push to let businesses refuse goods and services such as a wedding cake for a gay couple.
The review was commissioned in the wake of last year’s same-sex marriage victory to appease conservative MPs who feared the change would restrict people’s ability to practise their religion freely.

Former attorney-general Philip Ruddock has been appointed to ensure religious freedoms are protected as the government pushes ahead with legalising same-sex marriage.

The contents of the report – seen by Fairfax Media – are unlikely to placate conservatives and religious leaders, and will trigger concern within the LGBTI community about the treatment of gay students and teachers.

The report calls for the federal Sex Discrimination Act to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status – something some but not all states already allow.

“There is a wide variety of religious schools in Australia and … to some school communities, cultivating an environment and ethos which conforms to their religious beliefs is of paramount importance,” the report noted.

“To the extent that this can be done in the context of appropriate safeguards for the rights and mental health of the child, the panel accepts their right to select, or preference, students who uphold the religious convictions of that school community.”
Any change to the law should only apply to new enrolments, the report said. The school would have to have a publicly available policy outlining its position, and should regard the best interests of the child as the “primary consideration of its conduct”.
The panel also agreed that faith-based schools should have some discretion to discriminate in the hiring of teachers on the basis of religious belief, sexual orientation, gender identity or relationship status.

The religious freedom review, which was handed to former prime minister Malcolm Turnbull in May, received more than 15,000 submissions.

The panel was chaired by Howard government attorney-general Philip Ruddock and included the Australian Human Rights Commission president Rosalind Croucher, former Federal Court judge Annabelle Bennett, human rights lawyer and priest Frank Brennan and constitutional law professor Nicholas Aroney.

The authors rejected several measures demanded by conservatives, including some which were unsuccessfully floated as amendments to the same-sex marriage legislation passed last year.
The panel did not accept that businesses should be allowed to refuse services on religious grounds, warning this would “unnecessarily encroach on other human rights” and “may cause significant harm to vulnerable groups”.
The review also found civil celebrants should not be entitled to refuse to conduct same-sex wedding ceremonies if they became celebrants after it was was legalised.

The review does not recommend any changes to the Marriage Act. Nor does it recommend a dedicated Religious Freedom Act – championed by several major Christian churches – which would have enshrined religious organisations’ exemptions from anti-discrimination laws.

“Specifically protecting freedom of religion would be out of step with the treatment of other rights,” the report found.

However it did recommend the government amend the Racial Discrimination Act or create a new Religious Discrimination Act, which would make it illegal to discriminate on the basis of a person’s religious belief or lack thereof.
The panel said it had heard a broad range of concerns about people’s ability to “manifest their faith publicly without suffering discrimination”.
This included wearing religious symbols and dress at school or work, communicating views based on religious understandings, obtaining goods and services and engaging in public life without fear of discrimination.

The report also recommends federal legislation “to make it clear” that religious schools cannot be forced to lease their facilities for a same-sex marriage, as long as the refusal is made in the name of religious doctrine.

Prime Minister Scott Morrison last month told Fairfax Media new religious freedom laws were needed to safeguard personal liberty in a changing society.
“Just because things haven’t been a problem in the past doesn’t mean they won’t be a problem in the future,” he said.
While the panel accepted the right of religious school to discriminate against students on the basis of gender identity or sexual orientation, it could see no justification for a school to discriminate on the basis of race, disability, pregnancy or intersex status.

It said the states should abolish any laws that allowed for discrimination against teachers or students on this basis.

Religious schools already enjoy exemptions from discrimination laws when it comes to hiring teachers in all jurisdictions.

Some religious groups argued these exemptions should be retained while LGBTI groups – who told the panel of the stress and mental health pressure on teachers forced to hide their identity – called for them to be repealed.
“(An) example was given of an employee at a religious school who was employed despite being open about being same-sex attracted,” the report said. “Later, when the leadership of the school changed, that teacher was dismissed on the basis of his sexuality.”

Last year's same-sex marriage victory triggered the religious freedom review.
Last year’s same-sex marriage victory triggered the religious freedom review. CREDIT:AAP

The panel found that when it came to employment in religious schools, “undoubtedly the most difficult issue” was exceptions for sexual orientation and gender identity and marital status in light of the passage of marriage equality.

It recommended the Commonwealth law be amended to allow this discrimination, but only if the school had a publicly available policy.

“For the panel, the key to the maintenance of existing exceptions (to discrimination law) is clarity and transparency…”.
The report also recommends the states ensure existing same-sex teachers are not discriminated against if they get married to a same-sex partner.
The panel also found that blasphemy laws are out of step with a modern, tolerant, multicultural society and should be abolished, and said there was an absence of any concrete indications that funding to faith-based charities was under immediate threat.

ANTI – HOMOSEXUAL Bernard Gaynor seeks injunction in NSW Supreme Court against Sydney Anti-Discrimination Campaigner Garry Burns & Ors

MEDIA RELEASE

FOR IMMEDIATE RELEASE
ANTI-HOMOSEXUAL, ANTI-ISLAM BERNARD GAYNOR SEEKS SUPREME COURT INJUNCTION AGAINST SYDNEY GAY RIGHTS ACTIVIST GARRY BURNS
6 October 2018
Anti-Islam, Anti-Homosexual and failed political candidate Bernard Gaynor has commenced legal proceedings in the NSW Supreme Court against the NSW Local Court. The NSW Civil & Administrative Tribunal ( NCAT ). The President of the NSW Anti-Discrimination Board ( ADB ) and Sydney gay rights activist Garry Burns.
Mr Burns is the fourth defendant in those proceedings.
Mr Gaynor seeks declarations that any past claims ( homosexuality vilification complaints ) that Mr Burns’ made against him in presence of any other defendant’s are void. He also seeks prohibitions against either the President of the NSW ADB referring or authorising such complaints.
The Summons ( filed 26 July 2018 ) by Mr Gaynor seeks review of decisions of the local court, ADB and NCAT “ to refer the complaints of Mr Burns and the actions of each defendant doing so”. However the Summons fails to refer to 30 ( 1 ) ( b 2 ) inserted into the Local Court Act, giving it jurisdiction to hear substituted proceedings within the meaning of Part 3A of the NCAT Act.
Mr Burns said, “ This is one of many puzzling aspect of the Summons, which in many respects is a legally embarrassing document. I have put on a submitting appearance and will take no further part in the proceedings.”
Mr Gaynor “ seeks relief “ from those decisions which had “ the consequence of authorising and referral and maintenance of the proceedings is opaque.
Section 34B ( 2 ) ( a ) of the Civil and Administrative Tribunal Act 2013. It provides that applications involving federal diversity jurisdiction may be made to an authorised court ( ( commenced 18 Dec 2017 ), but likely in respect to earlier lower court decisions in those proceedings. See High Court Decision in Burns v Corbett ( 2018 ) HCA 15.
Section 34B is in Part 3A, dealing with diversity proceedings. Section 3A defines “ authorised  court “ as the Local Court or District Court.
Mr Gaynor seeks declaration that all proceedings Mr Burns commenced in the Local Court against him “ are void and of no effect because no lawful application or appeal has been made”. This is apparently a reference to the fact there has to be an NCAT application or NCAT appeal to be transferred to the Local Court.
Mr Gaynor seems to be challenging the practical operation of the entire Part 3A procedure. It may be arguable but has low prospects of success.
Mr Gaynor seeks numbered 1-5 ;
1, A declaration that Mr Burns complaints “ are void and of no effect”.
2, A declaration that the NCAT President has no power to receive complaints from Mr Burns or the ADB under various provisions of “ the Act “. This is apparently a reference to the Anti-Discrimination Act in relation to referral of complaints to NCAT.
3, A declaration that the NSW ADB president has no power to refer complaints under the Anti-Discrimination Act to the NCAT due to Federal Diversity Jurisdiction ( FDJ ).
4, Seeks prohibition against the Local Court from proceeding with or taking any further steps in respect of the three 2018 Local Court proceedings referred by NCAT against Mr Gaynor. ( Garry Burns ADB complaints )
5, Seeks injunction against all defendant’s ( including Mr Burns ) restraining them “ from maintaining or bringing any complaint or further complaint before “ the Local Court, and presumably NCAT or the ADB ( rather than their President’s, on basis of the Federal Diversity Issue ( FDJ ).
“ In short the essential point of Mr Gaynor’s Summons is misconceived and likely to fail.”
“ Mr Gaynor’s Summons wouldn’t be capable of buttering a plate of parsnips for the dinner table because it’s just incongruous,” said Mr Burns.
ENDS
 
Garry Burns
0407-910-309
02-9363-0372
 
0413-722-995

Abbott Found Guilty

Burns V Abbott Decision 

(click link above to read full Court documents)

“ Former convicted Blackshirts leader John Abbott was found guilty of vilification of Mr Burns by a court. Mr Abbott has to pay Mr Burns $4,000 within 14 days of the Judgement. “

Mr Abbott also has to publish an apology on the website where the vilification of me was published by him, and if he doesn’t he will have to pay me another $1,000.