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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.

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

STAND UP FOR LGBTI RIGHTS AROUND THE GLOBE’: FEDERAL LABOR MP

andrew leigh labor human rights lgbti rights

Over the past half century, Australia has made significant progress when it comes to LGBTI rights.

We have decriminalised homosexual acts between consenting adults. We have removed many forms of institutionalised discrimination against LGBTI Australians. And we have belatedly legislated same-sex marriage.

There is more to be done in Australia, but there is much more to be done around the world.The International Lesbian, Gay, Bisexual, Trans, and Intersex Association’s State-Sponsored Homophobia report found that as of May 2017, there are eight nations in which the death penalty is imposed as a punishment for same-sex consensual sexual acts.

Across the globe, 72 states continue to criminalise same-sex consensual activity—that is, more than one-third of the world’s nations.

The examples are chilling. This month, Malaysia released former politician Anwar Ibrahim, but continues to make sodomy illegal under section 377 of the Penal Code, which prohibits ‘carnal intercourse against the order of nature’.

In Bangladesh, Xulhaz Mannan, the founder of Bangladesh’s first and only LGBTI magazine, was brutally hacked to death as punishment for his activism.

In Tunisia, Bouhdid Belhedi, a campaigner for LGBTI rights, was assaulted by Islamic extremists and beaten by a mob outside his house in Tunis as a policeman watched.

In Ecuador, gay people are forced to undergo conversion therapy in secret clinics, where they are raped and beaten even though homosexuality is legal.

Since the 2013 military intervention in Egypt, at least 250 LGBTI  people have been arrested.

In Aceh, the Indonesian police this year arrested 12 transgender people.

In Iran, gay men are sometimes hanged.

In Russia, homophobic violence is on the rise.

In Syria, there are media reports of LGBTI individuals being thrown from tall buildings head first and then stoned by bystanders.

And although homosexuality is legal in Turkey, it has one of the worst records of human rights violations against LGBTI people in Europe.

Homosexuality is not a choice. Being transgender is not a lifestyle. Equality is indivisible. Human rights are universal.

It doesn’t matter whether you approach politics from the standpoint of freedom or from the standpoint of equality.

As individuals, as a civil society, and as government, Australians must do more to stand up for LGBTI rights around the globe.

Andrew Leigh is the Federal Member for Fenner. This is a speech delivered in the Australian Parliament on May 24 2018.

© 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.

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

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

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.