Tag Archives: Anti-Discrimination Act 1977

McKee Ordered To Apologise

Image result for geoff mckee

McKee given 14 days to apologise

Geoffrey McKee, father of serial Homophobic cyber stalker Luke McKee, a defendant under the Anti-Discrimination Act 1977 (NSW), was found to have unlawfully vilified male homosexuals by suggesting they (male homosexuals), are 3 times more likely to molest male children.

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

NSW Crest

Civil and Administrative Tribunal
New South Wales

Medium Neutral Citation:
Burns v Sunol [2016] NSWCATAD 74
Hearing dates:
10 November 2015
Date of orders:
19 April 2016
Decision date:
19 April 2016
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
A Britton, Principal Member
E Hayes, General Member
Decision:
(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
(2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
(3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
(4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.
(5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

.

Catchwords:
EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons

EQUAL OPPORTUNITY — victimisation — meaning of “detriment” — whether loss or damage suffered — whether any detriment suffered was “on the ground” of the person victimised having made complaint of unlawful vilification

RELIF — utility of making restraining order where a restraining order is in existence

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Cases Cited:
Bogie v The University of Western Sydney (1990) EOC 92–313
Burns v Dye [2002] NSWADT 32
Burns v Sunol (No 2) [2014] NSWCATAD 126
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 131
Burns v Sunol [2015] NSWCATAD 178
Burns v Sunol [2016] NSWCATAD 16
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC
Margan v Manias [2015] NSWCA 388
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier (EOD) [2006] NSWADTAP 51
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Category:
Principal judgment
Parties:
Garry Burns (Applicant)
John Sunol (Respondent)
Representation:
Solictors:
Mr Burns (Applicant in person)
Mr Sunol (Respondent in person)
File Number(s):
1410195, 1410218, 1410717

REASONS FOR DECISION

  1. John Sunol, the respondent in these proceedings, made an application to the NSW Civil and Administrative Tribunal (NCAT) for orders under s 102 of theAnti-Discrimination Act 1977 (NSW) (the Act), to dismiss three complaints made by Garry Burns to the President of the Anti-Discrimination Board (the Complaints). In those complaints Mr Burns alleged that by publishing material on the internet Mr Sunol vilified homosexual persons and also victimised him, in contravention of the Act. The Tribunal (constituted by Principal Member Britton), declined to make the orders sought by Mr Sunol (Burns v Sunol[2015] NSWCATAD 178 (“Burns 2015)).
  2. The material the subject of the Complaints (the offending material) was published either on a website operated by Mr Sunol or on websites operated by third parties (third party content).
  3. On 4 September 2015 Principal Member Britton directed the parties to make written submissions addressing whether, in relation to each complaint, the elements of s 49ZT (unlawful homosexual vilification) and/or s 50 of the Act (victimisation) were satisfied. In answer to that direction Mr Burns filed written submissions on 10 September 2015. No submissions were received from Mr Sunol. A hearing was subsequently conducted to determine the Complaints.
  4. In relation to the allegations of homosexual vilification the primary issues to be determined are:
  1. Whether the communication of the offending content was a “public act” of Mr Sunol.
  2. If so, whether the offending content had the capacity to incite hatred towards, or serious contempt for, homosexual person(s).
  3. If so, whether the requisite emotion was incited “on the ground of” the homosexuality of the person(s).
  4. If yes, whether, as Mr Sunol contends, one of the exceptions listed in s 49ZT applies.
  1. In relation to the allegation of victimisation the primary issues are:
  1. Whether Mr Sunol subjected Mr Burns to “a detriment”
  2. If so, whether it was “on the grounds” that Mr Burns had alleged that Mr Sunol had vilified homosexuals and/or brought proceedings under the Act.
  1. In these reasons we adopt the description of the Complaints used in Burns 2015: Complaint 1: NCAT no. 141095; Complaint 2: NCAT no. 1410218; Complaint 3: 1410717.
  2. For the reasons discussed below we find each Complaint to be substantiated in part.

ALLEGATION OF VILIFICATION

Can Mr Burns make a complaint of vilification?

  1. In submissions made in support of the dismissal application, it was contended for Mr Sunol that, by the operation of s 88 of the Act, it was not open to Mr Burns to make a complaint of homosexual vilification because there was “no evidence” that he “has the characteristic [being homosexual] that was the ground for the conduct that constitutes the alleged contravention”.
  2. At hearing Mr Sunol advised that he no longer disputes Mr Burns’ claim of being homosexual.

Statutory framework: homosexual vilification

  1. Section 49ZT of the Act makes homosexual vilification unlawful:

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

  1. The Act defines “public act” to mean:

“public act” includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

  1. Section 49Z states:

… A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

Complaint 1: 1410195

  1. In a complaint lodged with the President on 7 March 2014, Mr Burns asserted that material posted on Mr Sunol’s website between 5 March and 7 March 2014 amounted to “homosexual vilification and serious homosexual vilification”.
  2. Mr Burns claims that he visited Mr Sunol’s website on 5 March 2014 and downloaded the following content:

alternative text version – downloaded content 5 Mar 2014 (36.9 KB, rtf)

  1. In addition, Mr Burns claims that when he clicked on the link appearing on that page it opened to the website of “Right Wing America”, (RWA website). He claims he downloaded 27 pages of material from that website, which he forwarded to the President (see report forwarded by the President of the Anti-Discrimination Board (the President) to the Tribunal under s 94A(2) of the Act (the President’s report)).

Scope of complaint

  1. In his initiating complaint, Mr Burns asserted that “all of the material” downloaded from the RWA website vilified homosexuals. In written submissions dated 4 September 2015, Mr Burns narrowed the scope of his complaint to two of the 17 passages listed in the Summary of Complaint contained in the President’s report.
  2. Because some people may find the two passages offensive, we have decided not to reproduce them in full in these Reasons.
  3. The first of the two passages is said to have been posted by “Sgt Rock” and is identified in the President’s report as Statement 1 (Statement 1). The clear imputation conveyed by that statement is that homosexual men are child molesters who have gone to “all ends to push their vile message on everyone including children”. It goes on to pronounce “we” will take action to stop “this sh**”.
  4. The second statement identified as Statement 3 in the President’s report, is said to have been posted by “John J” (Statement 3). In that statement “John J” wrote that when he opened a “faggot on boy link” his site crashed and these “queerbulous bastards” need to be physically attacked.

Is the offending communication a public act of Mr Sunol?

  1. There is no argument that the publication of material on the internet, which as in this case is not password protected, is “a form of communication to the public” and thus a “public act” as defined by s 49ZS(a). Nor is it disputed that the publication of Statements 1 and 3 on the RWA website is a “public act”. The issue in dispute is whether it is Mr Sunol’s public act.
  2. In Burns v Sunol [2016] NSWCATAD 16 (Burns 2016), the Tribunal (differently constituted) in addressing a similar factual situation involving the same parties identified at [33] the “real issue [as being] whether [Mr Sunol’s] actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material”. Adopting the approach taken in Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal wrote at [34] that “the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images”.
  3. Mr Sunol claims not to be the operator of the RWA website, the author of Statements 1 and 3 (the offending statements), or to place those statements on that website. Mr Burns acknowledges there is no evidence to contradict those claims but contends nonetheless that the communication of the offending statements was the public act of Mr Sunol because:
  • The surrounding content makes plain that Mr Sunol was expressly inviting users of his website to click on those links and view the material on the RWA website
  • Mr Sunol was expressly endorsing the offending passages by posting the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”.
  1. In these proceedings Mr Sunol conceded that he placed the link and the surrounding material set out at [14] of these Reasons on the website. He also stated that he did not agree with all of the material on the RWA website and conceded some was “a bit extreme”. He said that he had pasted the material on his website from material supplied by Luke McKee. He said he agreed with a lot of what Mr McKee had to say, but not the “dirty bits”.
  2. A number of conflicting accounts were given about what Mr Sunol knew of the content on the RWA website when he placed the subject link and the accompanying commentary on his website. At the hearing, he conceded he had a general understanding but claimed he took down the subject link once he fully appreciated the content of the offending statements. He said he could not remember when this happened but thought it was probably in about September 2014. In a letter dated 19 March 2014 addressed to the President, he wrote that he had neither read nor looked at the material and the first time he did so was when he received notice of Complaint 1. Mr Sunol was first notified of Complaint 1 on 13 March 2014.
  3. The offending content was able to be accessed in a number of ways: through the subject link on Mr Sunol’s website and directly via the RWA website. It may be that other websites also contained links to the RWA website. That the offending statements were communicated to the public in a number of ways of itself does not exculpate Mr Sunol.
  4. Read together with the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”, we find that the material appearing on Mr Sunol’s website constituted an express invitation to users to click on the offending link and view the offending passages. We find Mr Sunol was responsible, in the relevant sense, for the “public act” of communicating the offending statements to the public.

Did the offending material have the capacity to incite?

  1. In Burns 2016, the Tribunal (differently constituted) noted at [9] that the vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan) and summarised at [9] the following principles:

(a) an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])

(b) “incite” in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11])

(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])

(d) it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])

(e) the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])

(f) in making that assessment the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61];Jones at [62], [63]).

  1. NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (ADT) has consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and has adopted the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).

‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie);

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

See, for example, Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns 2012 at [112].

  1. Adopting these principles, the question posed by s 49ZT of the Act is whether as claimed by Mr Burns the offending statements had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, homosexual(s) in the ordinary member of the group to whom the material was directed, that is viewers of his blog, on the grounds of their homosexuality. In answering that question we must first identify the relevant audience and then consider whether each statement is likely to have the capacity to incite towards, hatred or contempt for the notional ordinary (or ordinary reasonable member) of that audience.

Identification of the audience

  1. The relevant audience are internet users to whom the offending statements were directed. Apart from Mr Burns, we have no evidence about the identity of the persons who viewed the offending statements via Mr Sunol’s website.
  2. Mr Sunol asserts that many people follow his blogs. He claims to know this because he receives numerous comments about material posted on his blog through his Twitter account. He claims that some of his “followers” share his views but many are “politicians, academics, media and business people” who are just interested in the issues. He also claims to be followed by “a bunch of trolls who say they know Gary [Burns]”.
  3. Given the dearth of evidence it is not an easy task to identify the relevant audience. While possible that no one apart from Mr Burns visited Mr Sunol’s website or clicked on the subject link and read the offending passages, we think consistent with Mr Sunol’s claims that some people visited his website and through it accessed the RWA website.
  4. As discussed in Burns 2016 at [39] – [41] it is likely that the people who accessed the offending statements via Mr Sunol’s website were not a homogenous group and probably held a diversity of views about homosexual men, ranging from favourable to unfavourable.

Ordinary or ordinary reasonable member of the relevant audience?

  1. In Burns 2016 at [42]–[45], the Tribunal examined whether the assessment of the capacity of the impugned act to incite is to be made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. We adopt the approach taken by Bathurst CJ in Sunol at [34] and will measure the capacity of the offending statements to incite by reference to their effect on the notional “ordinary member” of the relevant group to whom the act is directed, namely users of Mr Sunol’s website.

Consideration

Statement 1

  1. The unambiguous imputation conveyed by Statement 1 is that homosexual men are paedophiles who actively promote their “vile message”.
  2. Whether an impugned public act has the capacity to incite one or more of the requisite emotions requires an objective evaluation and consideration of the act itself, the context in which it occurred, the surrounding circumstances, the language used, together with the identification of the relevant audience and any relevant characteristics or features of that audience. In making that evaluation, a decision-maker must guard against consciously or otherwise allowing their own reaction to the public act to influence their evaluation of its capacity of the act to incite one of the relevant reactions in the ordinary member of the group. It goes without saying that this task does not lend itself to empirical evaluation and will inevitably be impressionistic. There will be cases because of factors such as the persuasive nature of the language used, the method of communication and/or a particular characteristic of the members of the group which may predispose them to incitement, where there will be little doubt that the act had the capacity to evoke one or more of the relevant reactions in the ordinary member of the target group. Conversely, at the other end of the scale there will be public acts where there will be little room for doubt that it did not have the capacity to evoke those emotions. However, between these two extremes will invariably lie public acts where reasonable minds will differ on whether, objectively assessed, the act has the capacity to incite.
  3. As the Tribunal commented in Burns 2016 at [47], in Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. Statement 1 does more than merely express hatred and serious contempt towards homosexual men; in our opinion it also urges the reader to adopt those feelings.
  4. As discussed, the relevant audience to which this message was directed is not a homogenous group. It is unlikely that the statement had the capacity to incite hatred towards or serious contempt for homosexual men among members of the group who, like Mr Burns, hold positive views about homosexual men. Nonetheless, on the balance of probabilities, we find the statement had the capacity to incite hatred of, or serious contempt towards, homosexual men in the ordinary members of the group.

Statement 3

  1. The message conveyed by Statement 3 is that after viewing a link featuring male homosexual sex “John J” reacted with disgust — “I couldn’t stand anymore” — and felt propelled to violently assault these “querulous bastards”.
  2. The statement plainly conveys the writer’s contempt and disgust for male homosexuals, however we have concluded that it lacks the capacity to incite those emotions in the ordinary member of the group. The statement is in effect a rant and is neither well written, cogent, nor persuasive. In contrast to Statement 1 it does not convey the serious imputation that male homosexuals are, or have a tendency to sexually abuse children. While it uses derisory and insulting terms to describe male homosexuals and homosexual sex, we are not persuaded that it is capable of inciting the requisite ill-feeling in the ordinary member of the group.
  3. Not being satisfied that this element of s 49ZT(1) is established, this part of Complaint 1 must be dismissed.

Did Statement 1 have the capacity to incite “on the ground of” homosexuality?

  1. We must decide whether at least one of the “real”, “genuine” or “true” reasons for Statement 1 having the capacity to incite hatred towards, or serious contempt for, homosexual men, was their sexuality (Jones at [98];). The “target” of each offending statement was unmistakably homosexual men, apparently in general. There is nothing to suggest from the language used or the context in which Statement 1 appears that some other feature or characteristic of this group was likely to have been a contributing factor to the incitement. We find Statement 1 had the capacity to incite each of the relevant emotions towards homosexual men on the grounds of their homosexuality.

Conclusion

  1. Statement 1 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Statement 3 is dismissed.

Complaint 2: 1410218

  1. In this complaint lodged with the President on 17 March 2014, Mr Burns alleged that the following material which appeared on Mr Sunol’s website on 14 March 2014 vilifies male homosexuals:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

Embed both of the you tube videos on those pages like i showed you

What he going to do? Jail you for having you tube videos from the ABC, with links to world media reports? ** ** him

  1. The material claimed by Mr Burns to fall within s 49ZT(1) is the statement “Gay men are three times more likely to rape children”.

Did the offending material have the capacity to incite hatred towards, or serious contempt of homosexual men?

  1. The message conveyed by the statement is unambiguous: “Gay men are three times more likely to rape children”. As stated above in our opinion it is difficult to imagine a more damaging slur or insult that to accuse person or group of being a paedophile.
  2. We find the composition of the relevant audience to whom the message was directed (readers of Mr Sunol’s website) to be the same as that identified in relation to Complaint 1. For the reasons given above we think it more probable than not that the statement had the capacity to incite each of those emotions in the “ordinary member” of the group. That conclusion is bolstered by the use of the reference to statistics — “three times more likely” — which tends to imply that there is some factual basis for the claim and it was based on some statistical evidence.

Did the offending statement have the capacity to incite “on the ground of” homosexuality?

  1. The “target” of the offending statement is expressly stated to be “gay men”. There is nothing to suggest from the language used in the statement or the context in which it appears that some other feature or characteristic of this group was a contributing factor to the incitement. We find the statement had the capacity to incite each of the relevant emotions towards homosexual men on the ground of homosexuality of the members of that group.

Conclusion

  1. We find each element of s 49ZT(1) of the Act to be satisfied.

Complaint 3: 1410717

  1. In this complaint lodged with the President on 8 September 2014, Mr Burns claimed that material appearing on Mr Sunol’s website on 5 September 2015 constitutes both homosexual vilification and victimisation. With respect to the material said to constitute homosexual vilification, Mr Burns points to statements such as, “Stop Gary Burns criminalising dissent of ‘Gay Dads’ Baby Rape”. The nub of the allegation in respect of homosexual vilification is that the offending material is said to convey the message that homosexual men in general, and Mr Burns in particular, are paedophiles.
  2. Mr Burns attached to this complaint eight pages of material which cover a range of topics including “the Gay and Lesbian Lobby” and actions he is said to have taken in response to alleged homosexual vilification.
  3. At the request of the Tribunal, at hearing Mr Burns particularised the content he contends falls within s 49ZT(1) of the Act:
  1. The following passage posted on Mr Sunol’s website apparently on 5 September 2014 (Passage 1):

alternative text version – Passage 1 (36.7 KB, rtf)

  1. The following passage posted on a third party website, claimed by Mr Burns to be able to be opened through a link appearing on Mr Sunol’s website, immediately above Passage 1:

(Described by Mr Burns in the complaint as “Attachment B”, see President’s report page 11)

alternative text version – Attachment B (35.6 KB, rtf)

  1. The following passage posted on a third party website, claimed by Mr Burns to able to be opened by a link appearing on Mr Sunol’s website immediately below Passage 1:

(Described by Mr Burns in the complaint as “Attachment A”, see President’s report, page 12)

alternative text version – Attachment A (33.2 KB, rtf)

  1. For convenience we will refer to the above passages as Passages 1, 2 and 3, respectively, and collectively as “the offending passages”

Are the offending passages public acts of Mr Sunol?

  1. Mr Sunol submits that he was not relevantly responsible for any of the offending passages. While he admits placing Passage 1 on his website he submits he is not responsible for its communication to the public because it was written by Luke McKee and, in addition, the surrounding “disclaimer” — “Material I was asked to publish for a Luke McKee …” — made clear he was publishing the material on behalf of Mr McKee. With respect to Passages 2 and 3, he claims he did not write those passages and not did he operate or have any involvement with the websites on which they appeared.
  2. There can be no argument that Passage 1 was a form of communication to the public for which Mr Sunol was relevantly responsible. Whether he wrote the material is not to the point. Nor is the use of the purported disclaimer. By his actions, the material was published and communicated to the public.
  3. The available material does not support a finding that Passages 2 and 3 were written by, or posted on a website operated by, Mr Sunol. Nonetheless, applying the reasoning at [20] – [26] of these Reasons, we find that the communication of Passages 2 and 3 was a form of communication to the public for which Mr Sunol was relevantly responsible.

Did Passage 1 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

  1. Mr Burns asserts that that the reference in Passage 1 to a “militant gay paedophile rights activist” was intended to be a reference to him and that would be apparent to any user of Mr Sunol’s website. He argues that the use of the term “paedophile rights activist” had the capacity to incite hatred and serious contempt of him in ordinary users of Mr Sunol’s website.
  2. Mr Burns hypothesis rests on the assumption that the reader had knowledge of the history between Mr Burns and Geoff McKee [apparently Luke McKee’s father] and Mr Burns alleged “persecution” of Mr McKee.
  3. We accept that the reference to a “militant gay paedophile rights activist” in our opinion was intended by the author to be a reference to Mr Burns. Whether it is likely that that would been apparent to the ordinary user of Mr Sunol’s website cannot be assessed by reference to Mr Burns’ (or our) knowledge of the history between the parties, but rather by reference to the knowledge possessed by the ordinary member of the group. The available evidence does not support a finding that users of Mr Sunol’s website had knowledge of the history between Mr Burns and the McKees or that those matters had previously been ventilated on Mr Sunol’s website. While likely some members were aware that history, on the available evidence we are not satisfied that that knowledge could be imputed to the ordinary user of Mr Sunol’s website.

Did Passage 2 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

  1. Mr Burns contends that Passage 2 had the capacity to incite hatred towards and serious contempt of him because it conveyed the imputation that he is a paedophile on account of being a homosexual male.
  2. Passage 2 conveys a number of messages, which include:
  • That Mr Burns is a “gay paedophile rights activist”.
  • That Mr Burns actively campaigns against self-described “campaign leader” Luke McKee and others opposed to “gay baby rape”.
  • That Luke McKee’s father is being “prosecuted” by Mr Burns.
  • That the Department of Foreign Affairs and Trade is involved in facilitating the sexual abuse of children and helping “150 gay dads”.
  1. The passage portrays Mr Burns in an unfavourable light. However we are not convinced that the meaning conveyed to the ordinary member of the relevant class was, as Mr Burns, contends that he was “a gay paedophile” as opposed to “a gay paedophile rights activist”.
  2. But in any event, even if accepted that this passage had the capacity to incite hatred or contempt towards Mr Burns, we are not satisfied that one of the “real”, “genuine” or “true” reasons for it to have the capacity to incite those emotions was Mr Burns’ sexuality. In our opinion the predominant factor contributing to any incitement is likely to have been Mr Burns’ role in seeking to prevent Mr McKee’s “followers” (if indeed there are any) “speaking out”. We think it unlikely that Mr Burns’ sexuality would have contributed to that incitement in any real or operative way. In reaching this conclusion we note the inherent difficulty of identifying the factor or factor(s) that causes a person to experience the emotion of hatred and/or contempt for another person or persons.

Did Passage 3 have the capacity to incite hatred towards, or serious contempt of male homosexuals?

  1. Passage 3 repeats the assertion made in the material the subject of Complaint 2: “Gay men are three times more likely to rape children”. It goes on to suggest none too subtly that gay marriage is a ruse designed to facilitate the marriage of “two [gay] paedophiles” and their adoption of a child “for the purpose of later sharing with their kind on a ‘boy lover’ network”.
  2. The language used in Passage 3 our opinion is even more powerful and persuasive than that used in Complaint 2. We are satisfied that it has the capacity to incite hatred and serious contempt for male homosexuals on the ground of their sexuality.

Conclusion

  1. Passage 3 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Passage 1 and 3 is dismissed.

Does the exception in s 49ZT(2)(c) apply?

  1. Section 49ZT(2)(c) provides:

(2) Nothing in this section renders unlawful:

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

  1. In submissions filed in support of the dismissal application, it was asserted for Mr Sunol that the above exception applied in respect of each complaint. At hearing he stated he only relied on the exception in relation to Complaint 2 and was “dead against” the material the subject of Complaints 1 and 3.
  2. Mr Sunol asserts that the offending statement the subject of Complaint 2 — “Gay men are three times more likely to rape children — was published for academic purposes to encourage debate about matters of public importance. He stated he has “nothing against homosexuals” but agrees with the offending statement “in a sort of academic way”. He claimed the statement was based on what he had been told by Geoff McKee who has researched the area and considered “academic material from one of the universities”. He stated he had read “bits of” but not all of the material relied upon by Geoff McKee.
  3. Mr Sunol bears the onus of establishing that this exception applies (s 104 of the Act). He has produced no evidence of any academic articles which support the proposition that “Gay men are three times more likely to rape children”. By his own admission he has made no independent enquiries about the truth or otherwise of the claims made by Mr McKee. At its highest his evidence is that he glanced at some literature he was provided by Mr McKee.
  4. Even if accepted that Mr Sunol published the offending statement to encourage debate about matters of public interest, he has failed to discharge the onus of establishing that he acted “reasonably and in good faith”. Accordingly it is not open to him to rely on s 49ZT(2)(c) of the Act.

ALLEGATION OF VICTIMISATION

  1. In Complaints 2 and 3 Mr Burns also alleged that he was victimised by Mr Sunol in contravention of 50 of the Act, which provides:

50 Victimisation

(1) It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

  1. Mr Burns must establish:
  1. That by the publication of the challenged material Mr Sunol subjected him to a detriment.
  2. That Mr Sunol did so “on the ground” that he had done one of the things listed in par. (a),(b), (c) and/or (d) of s 50(1).

Complaint 2

  1. Mr Burns contends that he was victimised by Mr Sunol by the publication of the following statements on his website:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

I left out a name as i have court order not to put his name in the email I ma publishing and i do not want to breach order

This material is very serious and I think that all should watch this video I put online

Was Mr Burns subjected to a detriment?

  1. The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial” (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146). Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken (Sivananthan v Commissioner of Police, NSW Police Service at [41]).
  2. Apart from a one line entry in his statement of claim — On reading each of the above statements the Applicant was shocked, humiliated and angry —Mr Burns provided no further particulars or any supporting evidence of the alleged detriment suffered. From the available material it cannot be discerned whether Mr Burns’ alleged reaction was because he believed the offending statements vilified homosexual men or because he was being targeted by Mr Sunol for his actions in making complaints to the President. While possible, we think it unlikely having read and considered numerous comments made by Mr Sunol of the type about which he now complains, that Mr Burns would have reacted with feelings of shock, humiliation and anger. Mr Burns bears the onus of proof and has failed to discharge that onus.
  3. We understand Mr Burns to also claim that by the publication of the offending material he suffered damage to his reputation because it conveyed the suggestion that he was a person who raped children. Elaborating on that argument he contends it would have been evident to the reader that he was the subject of the offending comments or the person referred to as “***”. In support he points to the following entry on Mr Sunol’s website which appears about 20 lines on from the passages complained about:

Labels: Gary Burns, John Christopher Sunol, John Sunol, Luke McKee.

  1. We reject that argument for these reasons. First, we do not accept the proposition that it would have been evident to users of Mr Sunol’s website that Mr Burns would have been the person referred to in the statements: “That will make * ** going crazy” and those referring to court orders and the like. While we accept that Mr Sunol was referring to Mr Burns, that connection could only be drawn by persons who had knowledge of the history between the parties. It is not apparent how the mention of Mr Burns’ name under the heading “label” would lead the reader to make that connection. Second, even if assumed that the reader would have made that connection, we are not persuaded that the statement carried the imputation that Mr Burns had a propensity to sexually abuse/rape children. Rather the imputation carried is that the statement would have infuriated Mr Burns.
  2. Not being satisfied that Mr Burns was subjected to a detriment this part of Complaint 2 must be dismissed.

Complaint 3

  1. The publication complained of is the following passage said to have appeared on Mr Sunol’s website on 6 September 2014.

(The handwritten notation was made by Mr Burns)

alternative text version – Passage 6 Sep 2014 (36.6 KB, rtf)

  1. There is no evidence to refute claim Mr Burns’ claims that when he opened the link appearing on the page it took him to the decision Burns v Sunol (No2)[2014] NSWCATAD 126 on CASELAW, a NSW Government website which publishes decisions of NSW Courts and Tribunals.

Was Mr Burns subjected to a detriment?

  1. The above content describes Mr Burns as being corrupt, accuses him of abusing the courts, being a thief and abusing the law. In contrast to Complaint 2 there can be no doubt that Mr Burns was the target of these comments.
  2. We have no evidence about Mr Burns’ reputation as perceived by others and therefore make no finding as to whether in fact Mr Burns was damaged by the publication of those comments.
  3. Mr Burns’ claim of being “shocked, humiliated and angry” on reading the above material is not implausible. The allegations, in particular the allegation of corrupt conduct, are of a serious nature. While the evidence on which Mr Burns relies is not especially compelling and unsupported, nonetheless we are satisfied on the balance of probabilities that it caused Mr Burns to experience feelings of humiliation and anger. We find by publishing the offending statement Mr Sunol subjected Mr Burns to a detriment that was real and not trivial.

On the grounds of

  1. Mr Burns must also establish that Mr Sunol published the offending material “on the ground” that he had done one of the things listed in s 50(1) of the Act. The phrase “on the ground of” in s 50(1) of the Act has been interpreted to mean one of the ‘real’, ‘genuine’ or ‘true’ reasons (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
  2. Mr Burns contends that the trigger for Mr Sunol’s actions in subjecting him to the detriment of publishing the material about which he complains was because he alleged that Mr Sunol unlawfully vilified homosexuals in contravention of the Act (s 50(1)(c)) and also brought proceedings under the Act (s 50(1)(a)).
  3. Mr Sunol states that these proceedings are the eighth public hearing he has had to “endure” as a result of “the serial complainant’s [Mr Burns] obsessive, vexatious and frivolous complaints against my blogging about Agenda 21 and related issues”. He contends that his ideas are based on “my religious, academic, political, cultural and historical evidentiary beliefs”. He claims that Mr Burns is unfairly abusing the “court system” to silence people who do not share his views.
  4. We find that Mr Sunol published the offending material for a number of reasons, including that he:
  • feels aggrieved at being “singled out” and “unfairly targeted” by Mr Burns
  • believes that Mr Burns’ actions are an affront to free speech
  • considers given the volume of complaints that Mr Burns is not genuine, is “abusing the system” and is in effect a queralent
  1. While likely that these and other factors contributed to Mr Sunol’s decision to publish the offending material, we find that nonetheless at least one of the real reasons he did so is because Mr Burns has made allegations that he has contravened the Act and brought proceedings against him.

Does s 50(2) apply?

  1. While not raised by Mr Sunol at the hearing we note that in submissions filed on his behalf in relation to the dismissal application he foreshadowed his intention to rely on s 50(2) of the Act. The defence contained in s 50(2) only applies if the allegation of a contravention of the Act by the person victimised was both false and not made in good faith. Mr Sunol has not adduced any evidence to support a finding that the allegations made by Mr Burns are “false”. Absent such evidence s 50(2) cannot be relied upon.
  2. It is unnecessary to consider whether the allegations made by Mr Burns were not made in good faith.

Conclusion

  1. The complaint of victimisation in relation to Complaint 2 is dismissed. The complaint of victimisation in relation to Complaint 3 is substantiated.

Relief sought

  1. Mr Burns seeks orders that Mr Sunol issue an apology and be restrained from “any future acts of homosexual vilification”.
  2. Section 108 of the Act states:

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

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

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

Restraining order

  1. Having found the Complaint in part, we may make an order enjoining Mr Sunol from continuing or repeating any conduct rendered unlawful by this Act (s 108(2)(b) of the Act).
  2. In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders:

(1) In this order, “the material” means:

(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me.

(b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on.

(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.

(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.

(e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.

(f) Gay marriage is child abuse.

(2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

  1. Mr Sunol’s appeal against the above decision was dismissed: Sunol v Burns [2015] NSWCATAP 207.
  2. While not identical the material the subject of the orders made in Burns v Sunol [2015] NSWCATAD 131, is broadly similar to the material we found to constitute unlawful homosexual vilification. For that reason we have decided there would be no utility in making a further order under s 108(2)(b) of the Act as it would in effect duplicate an existing order made by NCAT.

Apology

  1. Mr Burns seeks an order that Mr Sunol issue him with an apology.
  2. The efficacy of ordering an apology where a complaint of unlawful vilification is found to be substantiated has been the subject of extensive consideration by, the ADT (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).
  3. We have decided it is appropriate to order Mr Sunol to publicly acknowledge that he has contravened s 49ZT of the Act. We order:

Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2014, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

  1. We have decided no useful purpose would be served in requiring Mr Sunol to issue a personal apology to Mr Burns either in relation to the complaint of vilification and victimisation.

Orders

  1. The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
  2. The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
  3. The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
  4. The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.

**********

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

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 19 April 2016

John Christopher Sunol once again found guilty of vilifying homosexuals

NSW Crest

You’d think by now the people like Sunol who communicate with Luke McKee either by email or by phone would learn that Luke McKee is causing them lots of problems.

In relation to this published decision I would safely say that Luke McKee’s daddy Geoffrey McKee will also be found guilty of vilifying homosexuals when the complaint is finally handed down.
Luke McKee you are causing problems for a lot of people.
This decision substantiates that view one hundred percent.
Warm regards,
Garry Burns.

VICTORIA’S PREMIER DANIEL ANDREWS CONDONES VILIFICATION , HATRED AND VIOLENCE AGAINST HOMOSEXUALS

Critical Incident Response Team

Critical Incident Response Team (Photo credit: Wikipedia)

FOR IMMEDIATE RELEASE

16 February 2016
Sydney Anti-Discrimination Activist Garry Burns has taken legal action under the Anti-Discrimination Act 1977 ( NSW ) against La Trobe City Councillor Christine Sindt over her publishing to her FaceBook page a statement that Mr.Burns is a “ gay child sex normalisation activist “ and other material suggesting homosexuals in general are criminals because they molest children.
Ms.Sindt allegedly made a complaint to Morwell Police on or about the 14 July 2015 that Mr.Burns had attempted to “blackmail” her into giving him money in exchange for him dropping his court proceedings against her.
“ I have not been contacted by Victoria’s Police Force in relation to any allegation of criminality and I believe Councillor Sindt is using Morwell Police in attempt to discredit or intimidate me and via third parties like Cahill. In the YouTube clip below from a Tom Cahill has been in contact with Sindt because he has put in email that I am an accused person in relation to my illegitimate dealings with Councillor Sindt ” in relation to blackmailing her” , said Mr.Burns.
The YouTube clip below also suggests that Mr.Burns is a pedophile and that homosexual men and women are pedophiles / criminals.
Mr.Burns has written to Minister of Police Mr.Wade Noonan , Minister for Local Government Ms. Natalie Hutchins , Chief Commissioner of Police Mr.Ashton and Premier Daniel Andrews but all seem to condone the pernicious practice of it’s Police Force; i.e , one of allowing a serious crime to hang over an innocent man’s head while others like Sindt use that allegation to incite third parties to hatred and violence against homosexuals while being condoned by those of the powerful position of the Victorian Labor Government.
‘ I suggest all those inept and incongruous politicians cc’d in above who’ve received a copy of this press release to order popcorn and cup cakes and sit back and listen to this YouTube clips perverted ramblings of hatred against me personally and toward fellow homosexual Australians” , said Mr.Burns.
Mr.Burns believes Victoria Police once they’ve received an allegation against a person alleging serious criminality they must investigate that allegation promptly so that they can either charge the person or dismiss the allegation as unfounded.
ENDS
MEDIA ENQUIRIES
Garry Burns
02-9363-0372
0407-910- 309.

Anti-Islam Solicitor Robert Remo Balzola loses again

0d61dda

Balzola looses again

Anti-Islam Solicitor Robert Remo Balzola
loses another NCAT encounter with anti-discrimination campaigner Garry Burns.

See below case law.
NSW Crest

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:
Burns v Sunol [2016] NSWCATAD 16
Hearing dates:
15 July 2015
Date of orders:
21 January 2016
Decision date:
21 January 2016
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
A Britton, Principal Member
M O’Halloran, Member
M Murray, Member
Decision:
1.   The complaint is substantiated.
2.   Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.
3.   Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.
Catchwords:
EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons
Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Cases Cited:
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 40
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284
Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1
Jones v Trad [2013] NSWCA 389
Margan v Manias [2015] NSWCA 388
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Category:
Principal judgment
Parties:
Garry Burns (Applicant)
Christopher Sunol (Respondent)
Representation:
Solicitors:
G Burns (Applicant in Person)
R Balzola & Associates(Respondent)
File Number(s):
1510181

JUDGMENT

  1. In 2014 Garry Burns lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) about John Sunol, the respondent in these proceedings. The complaint concerns content published on the internet, which Mr Burns contends vilifies homosexuals. Section 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a “public act”, to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person(s) is, or is thought to be homosexual.
  2. The material which is the subject of Mr Burns’ complaint was published on a website apparently operated by a third party, Luke McKee (the offending content). Mr Burns contends that Mr Sunol invited followers of his blog to view the offending content by placing on his blog a link to, and a commentary about, the offending content. Mr Burns also contends that as a consequence of this placement Mr Sunol was responsible in the relevant sense for the act of communicating the offending content to the public.
  3. Mr Sunol disagrees and submits that he is not responsible for the material appearing on Mr McKee’s website. He argues that Mr Burns is targeting him, not Mr McKee, because Mr McKee is “outside the jurisdiction of NSW”. Further he contends that Mr Burns’ actions in targeting him and not the “ultimate author” demonstrates that Mr Burns’ complaint is vexatious. He describes Mr Burns as a serial complainant.
  4. The issues that arise for determination are:
  1. Whether the communication of the offending content was a “public act” of Mr Sunol
  2. If so, whether the offending content incited or had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual person(s), and
  3. If so, whether the requisite emotion was incited on the ground of the homosexuality of the person(s).
  1. If the answer to each of the above questions is yes we must also consider whether, as submitted by Mr Sunol, any of the exceptions listed in s 49ZT apply.
  2. For the reasons set out below we have found Mr Burns’ complaint to be substantiated.

Statutory framework

  1. Section 49ZT, makes it unlawful for a person to engage in a “public act” which amounts to homosexual vilification within the meaning of that section:

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

  1. A “public act” is defined by s 49ZS to include:

In this Division:

“public act” includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

Legal principles

  1. The vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following principles relevant to this matter may be distilled from those authorities:
  1. an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])
  2. “incite” in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11])
  3. for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])
  4. it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])
  5. the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])
  6. in making that assessment the particular class to whom the act is directed/ the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).

The offending content

  1. Mr Burns complained to the President that the following material, which is reproduced at Tab 1 of the President’s report, appeared on Mr Sunol’s website on 2 December 2014:

image of content published on Mr Sunol’s website on 2 December 2014

text version of content published (50.3 KB, rtf)

  1. In his complaint, Mr Burns claimed that the above link takes the reader to the following page (Attachment A) maintained by Mr McKee who apparently uses the name, “Hojurka”.

Attachment A

text version of Attachment A (52.6 KB, rtf)

“No evidence of link” argument

  1. In written submissions, Mr Sunol asserted that there is “no evidence” that the link to Mr McKee’s website that Mr Burns claims was on his website (theoffending link), “ever existed” and, by the operation of “the rule in Jones v Dunkel”, the complaint must fail.
  2. In a statutory declaration provided to the Board dated 22 December 2014, Mr Sunol declared that:
  1. He was not the author of the “purportedly offensive material’ found in the “said link” [to Mr McKee’s website].
  2. He does not have control over “blocking other parties posting links upon my blogs but only the control of removing material or links that actually appear on my blog”.
  3. On or about 6 December 2014 he noticed and removed from his blog the link described by Mr Burns. He then placed the following note on his website, which shows that the “purportedly offensive material” had been removed:

These articles are put on to show the coming of agenda 21 (coming of the new world order) or a one-world government, and issues related. This is to put all it represents as put in the media and other places such as news papers ect. I will change my writings from time to time as I deem the necessity to do so. johnsunol.blogspot.com.au / johnsunola.blogspot.com.au and johnsunolb.blogspot.com.au – (this blog)

[For convenience we will refer to this passage as “the disclaimer”.]

  1. When questioned in these proceedings Mr Sunol gave a different account. He not only admitted placing the offending link on his website but described to the Tribunal how he did so. He also admitted placing the commentary on his website that appears at Tab 1 of the President’s report.
  2. The suggestion in Mr Sunol’s statutory declaration that “other parties” might have posted the link on his website is implausible, unsupported and contradicted by his oral evidence.
  3. The submission that there is “no evidence” that the page on Mr Sunol’s website and the offending link “ever existed” must be rejected.

“Material does not exist” at time of complaint argument

  1. Mr Sunol contends that because the offending link was allegedly removed before the President notified him of the complaint on 15 December 2014, the President lacked jurisdiction to refer the complaint to NCAT.
  2. This argument is misconceived. There is the nothing in the Act that prevents the President from referring to the Tribunal, or the Tribunal from determining, a complaint where the alleged contravention of the Act has ceased. The only provision in the Act to impose a temporal requirement in relation to the making of a complaint is s 89B(2)(b), which provides that the President may decline a complaint if the alleged conduct occurred more than 12 months before the complaint was made.

The statutory construction argument

  1. Mr Sunol contends that to constitute a “public act”, the impugned act must satisfy either paragraph (a) or (b) and, in addition the second limb of paragraph (c) of s 49ZS — that the alleged vilifier had knowledge that the act promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person(s). In support of that contention, Mr Sunol points to the use of the word “and” at the end of paragraphs (a) and (b), which he submits operates to link or “hard wire” those paragraphs with paragraph (c). He cites in support of this proposition, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (Catch the Fire) at [16].
  2. This submission must be rejected. Section 49ZS sets out a non-exhaustive list of acts that constitute a “public act”. The definition lists three broad categories of “acts”:
  • any form of communication to the public, including speaking …, and
  • any conduct (not being a form of communication referred to in paragraph (a)) observable by the public…, and
  • the distribution or dissemination of any matter to the public…
  1. The use of the conjunction “and” at the end of paragraphs (a) and (b) simply indicates that the acts listed in each of the three paragraphs fall within the scope of the definition. This is made plain by the opening words of the definition: “Public act includes …”
  2. The literal meaning of the definition is that an act will constitute a “public act” if it satisfies any one of the three paragraphs listed in s 49ZS. While, as the High Court emphasised in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355 at 381-2, 384, the proper approach to statutory interpretation is contextual rather than strictly literal, there is nothing in either the definition itself, its context or the language of the Act to suggest that the definition should be construed to mean that an impugned act caught by paragraph (a) or (b), must also satisfy the second limb of paragraph (c).
  3. The decision of the Court of Appeal of Victoria in Catch the Fire does not, as Mr Sunol contends, support the proposition he advances about the operation of the definition. The passage he cites relates to a discussion about the meaning of the word “incitement”.

The disclaimer argument

  1. Mr Sunol contends that the disclaimer posted on 6 December 2014 makes it clear that he was not endorsing the views expressed by Mr McKee but rather encouraging people to “make up their own minds”.
  2. While it is not entirely clear how long the material the subject of Mr Burns’ complaint was on Mr Sunol’s website before the disclaimer was posted, the available evidence indicates that it was at least a couple of days. Mr Burns testified that he saw the material (at Tab 1 of the President’s Report) on or about 2 December 2014. The length of time that the material appeared on Mr Sunol’s website before the disclaimer was posted may be relevant to the issue of relief, but it is otherwise irrelevant to our determination.

Is the offending communication a public act of Mr Sunol within the meaning of para (a) of s 49ZS?

  1. There is no argument that the publication of material on the internet, which as in this case is not password protected, is “a form of communication to the public”. Nor is there any disagreement that the communication of the offending content is a “public act” within the meaning of s 49ZS of the Act. The issue in dispute is whether its communication to the public is a public act by Mr Sunol.
  2. The definition of public act must be read in the context of the substantive provision, s 49ZT of the Act, which makes it unlawful for a person, by a public act to incite … Mr Sunol contends that the offending content was not a form of communication by him but rather a form of communication for which Mr McKee is responsible. Mr Burns, on the other hand, contends that by placing on his website the words “all should read this … all should read this and make their own decision” and providing a link to Mr McKee’s website, Mr Sunol was inviting or encouraging his “followers” to read the offending content. Mr Sunol disagrees and argues that the words on his website were nothing more than a “bald invitation” and are insufficient to attribute responsibility to him for the offending content.
  3. In support of their respective positions, both parties referred us to decisions of NCAT and one of its predecessor tribunals, the Administrative Decision Tribunal, in which both were parties.
  4. In Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal (differently constituted) considered whether Mr Sunol had communicated to the public three publications, which appeared on websites maintained by third parties. The Tribunal reasoned (at [34]) that Mr Sunol was relevantly responsible for two of those publications because first, each contained material that he had composed and, second, Mr Sunol expressly invited users who had logged onto it to click on the requisite phrase and gain access to the publications. With respect to the third publication, the Tribunal held that Mr Sunol was not responsible for its communication to the public: “It is not clear from the evidence relating to [that] publication … that any such invitation existed on a website maintained by Mr Sunol”: at [35].
  5. More recently, in Burns v Sunol [2015] NSWCATAD 40 (Burns 2015), the Tribunal found that the publication of statements relating to a YouTube clip, which appeared on a website that was not maintained by Mr Sunol, nonetheless constituted a public act of Mr Sunol. The Tribunal found at [41] that the words posted by Mr Sunol on his website —“some very interesting videos on corruption from Luke McKee” — constituted an invitation to access those videos and taken together with the accompanying link made Mr Sunol responsible in the relevant sense for the impugned “public act”.
  6. Mr Sunol contends that the Tribunal in Burns 2015 misapplied the principles established in Burns 2012, which he contends establish the:
  1. First responsibility test
  2. Operator test
  3. Accessibility test
  4. Knowledge test
  5. Intention test
  6. Second responsibility test
  7. Composition test.
  1. If Mr Sunol is contending that Burns 2012 is authority for the proposition that the alleged vilifier will only be relevantly responsible for the publication of material said to vilify homosexuals appearing on a website maintained by third party, if each of the above “tests” is satisfied, we cannot agree. It is a misreading of Burns 2012 to suggest that the Tribunal held that where the impugned material is published on the website of a third party, the alleged vilifier will only be relevantly responsible if they were the operator of the third party website, primarily responsible for the publication of, or the author of the impugned material, or placed that material on that website.
  2. There is no evidence to contradict Mr Sunol’s claim that he was not the operator of Mr McKee’s website, the author of the offending content, or that he posted the offending content on that website. The real issue is whether his actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material.
  3. Consistent with the approach taken by the Tribunals in Burns 2012 and Burns 2015, the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images.
  4. We agree with the submission made by Mr Burns that the words posted on Mr Sunol’s website constitute an express invitation to people visiting Mr Sunol’s website to click on the offending link and view the offending content. The statement “I think all should read this and make their own decision if they back it [the legalization of Phedofelia [sic]]” does not make the words appearing on Mr Sunol’s website any less of an invitation or encouragement to view the offending content. Read in context we find that the material appearing on Mr Sunol’s website constituted an express invitation to users to click on the offending link and access the offending content.
  5. We find that Mr Sunol was responsible, in the relevant sense, for the “public act” of communicating the offending content to the public. In reaching that conclusion, we note that the offending content could be accessed in a number of ways not just through the offending link on Mr Sunol’s website.

Did the offending material have the capacity to incite?

  1. We must evaluate whether the offending content had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, or serious ridicule of homosexual(s) in the ordinary (or ordinary reasonable) member of the relevant audience, on the grounds of their homosexuality.
  2. To undertake that task, consistent with the authorities, we must first identify the relevant audience and then consider the likely effect of the offending content on the notional ordinary or ordinary reasonable member of that audience.

Identification of the audience

  1. The relevant audience are internet users who viewed the offending content via Mr Sunol’s website. We have no evidence about who accessed the offending content via this path, apart from Mr Burns. According to Mr Sunol, his followers, who, he claims number just under 1000, represent a cross section of the community and include politicians, journalists and public commentators. We also think it likely that it includes people who share similar views on issues championed by Mr Sunol, such as opposition to same sex marriage. Mr Burns apparently follows Mr Sunol on the internet for the purpose of monitoring the type of material he promotes. According to Mr Sunol, Mr Burns is but one of a number of “trolls” who follow him on-line to “catch him out”.
  2. Given the ease with which sites can be accessed via the internet, we think it reasonable to assume that the audience probably also included people who put the term “paedophilia” into a search engine or otherwise stumbled across Mr Sunol’s blog.
  3. It is likely that members of the audience would hold a diverse range of opinions about homosexual people and same sex marriage, ranging from ignorance, support and strong opposition. We think it likely that a fair number of the audience would hold similar views to Mr Sunol about these issues. It is also likely that the audience includes people such as Mr Burns who hold opposing views, and people who hold no views about these issues.

Ordinary or ordinary reasonable member of the audience?

  1. As Bathurst CJ commented in Sunol at [32], there is a divergence of opinion as to whether the assessment of the capacity of the impugned act to incite is to be made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. The Chief Justice expressed a preference for the question to be answered having regard to the effect of the act on an “ordinary member” of the relevant group. He explained (at [34]):

[T]hat, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.

  1. Allsop J, on the other hand, took the view that the question is ultimately one to be determined having regard to the context in which the offending act took place, reasoning (at [61]):

The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the “reasonable” member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.

  1. In Jones, Ward JA at [53] referred to, but did not determine, the issue characterising the test as the “ordinary member (or perhaps an ordinary reasonable member)” (at [61], [62]).
  2. More recently in Margan, the Court of Appeal appeared to endorse the approach taken by Bathurst CJ in Sunol, stating (at [76]) that the assessment should be made by reference to the ordinary member of the audience to whom the public act is directed, not the ordinary reasonable member.

Consideration

  1. The offending content conveys a number of messages:
  • That US President Obama’s friends include “gay paedophiles”
  • That President Obama and the US Democratic party support homosexuals and same sex marriage and, as a consequence, paedophilia
  • That Barrie Drewitt Barlow [a homosexual man who announced that he had fathered a child using a surrogate mother] is a paedophile
  • That same sex marriage is a ruse being used to legalise paedophilia
  • That the “movers and shakers” in the campaign for same sex marriage are motivated so they can “get little boys to rape”
  • That gay men have a “sexual need” to rape children.
  1. In Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to think of a more damaging slur or insult than to accuse a person of being a paedophile.
  2. Self-evidently the likely audience in this case is not a homogenous group. It is probable that a range of reactions to the offending content would be invoked. It is improbable that it had the capacity to incite Mr Burns or those who share his views about homosexuality and same sex marriage, to have hatred towards or serious contempt for homosexual persons. Nor in our opinion, is it likely to have the capacity to incite those reactions in uses who may not share Mr Burns’ views but are nonetheless rational and possess some basic understanding about those issues. As noted, we think it likely that the audience would include people, like Messrs Sunol and McKee, who are strongly opposed to same sex marriage. We think the use of intemperate language and the tone of the offending content was capable of stirring up, feelings of hatred toward and severe contempt for male homosexuals in the ordinary member of that sub-group.
  3. We find the offending content was capable of inciting the ordinary member of the relevant group to have hatred towards and severe contempt for male homosexuals.

On the grounds of

  1. We find that one of the “real”, “genuine” or “true” reasons for those reactions having the capacity to incite the notional ordinary member of the relevant audience to have hatred towards and severe contempt for male homosexuals, was their sexuality.

Do any of exceptions apply?

  1. Section 49ZT(2) operates to except certain public acts which might otherwise be unlawful by the operation of s 49ZT(1). Mr Sunol bears the onus of establishing that an exception applies (s 104 of the Act). He relies on s 49ZT(2)(c), which states:

(2) Nothing in this section renders unlawful:

(c) a public act, done reasonably and in good faith, or academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

  1. Mr Sunol submits that his motivation in placing the offending link on his website was to encourage discussion in the public interest about the same sex marriage debate.
  2. To avail himself of the exception Mr Sunol must establish on the balance of probabilities that his action in communicating the offending content was done:
  • Reasonably and in good faith
  • For academic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
  1. Mr Sunol asserts that there is scientific evidence that homosexuals have a propensity to “rape or sexually abuse children”. He was unable to point to any supporting material.
  2. There is a range of opinion within the community about whether same sex marriage should be legalised. The offending content goes somewhat further than voicing strong opposition to same sex marriage. It promotes the view that it should not be permitted because homosexual men have a tendency to sexually abuse children.
  3. Even if accepted, as claimed by Mr Sunol, that the offending act was done in good faith and not motivated by ill-will or other improper motive (see for example, Western Aboriginal Legal Service v Jones [2000] NSWADT 102; Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1), we are not satisfied having regard to the inflammatory tone and intemperate language of the offending content together with the lack of any evidence of steps taken by Mr Sunol to determine whether there was any basis for the proposition that male homosexuals have a tendency to sexually abuse children, that it could be said that his act in communicating the offending content was done “reasonably”.
  4. Mr Sunol has not discharged the onus of establishing that his public act was done reasonably. Therefore the defence in s 49ZT(1)(c) cannot be relied upon.

Summary

  1. The complaint made by Mr Burns is substantiated.

Relief

  1. At the hearing we decided to give the parties the opportunity to make submissions about what if any orders should be made under s 108(2) of the Act, if we determined the complaint was substantiated. We did so in part because Mr Sunol advised that he had lodged an appeal against the decision in Sunol2015 to order that he refrain from publishing material on his or third party websites material of the type the subject of this complaint. The appeal was dismissed: Sunol v Burns [2015] NSWCATAP 207. We direct:
  1. Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.
  2. Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.

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

Registrar

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

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 21 January 2016

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

By Evelyn Schlatter and Robert Steinback

Ever since born-again singer and orange juice pitchwoman Anita Bryant helped kick off the contemporary anti-gay movement some 40 years ago, hard-line elements of the religious right have been searching for ways to demonize gay people — or, at a minimum, to find arguments that will prevent their normalization in society. For the former Florida beauty queen and her Save Our Children group, it was the alleged plans of gay men and lesbians to “recruit” in schools that provided the fodder for their crusade. But in addition to hawking that myth, the legions of anti-gay activists who followed have added a panoply of others, ranging from the extremely doubtful claim that sexual orientation is a choice, to unalloyed lies like the claims that gay men molest children far more than heterosexuals or that hate crime laws will lead to the legalization of bestiality and necrophilia. These fairy tales are important to the anti-gay right because they form the basis of its claim that homosexuality is a social evil that must be suppressed — an opinion rejected by virtually all relevant medical and scientific authorities. They also almost certainly contribute to hate crime violence directed at the LGBT community, which is more targeted for such attacks than any other minority group in America. What follows are 10 key myths propagated by the anti-gay movement, along with the truth behind the propaganda.

MYTH # 1
Gay men molest children at far higher rates than heterosexuals.

THE ARGUMENT
Depicting gay men as a threat to children may be the single most potent weapon for stoking public fears about homosexuality — and for winning elections and referenda, as Anita Bryant found out during her successful 1977 campaign to overturn a Dade County, Fla., ordinance barring discrimination against gay people. Discredited psychologist Paul Cameron, the most ubiquitous purveyor of anti-gay junk science, has been a major promoter of this myth. Despite having been debunked repeatedly and very publicly, Cameron’s work is still widely relied upon by anti-gay organizations, although many no longer quote him by name. Others have cited a group called the American College of Pediatricians (ACPeds) to claim, as Tony Perkins of the Family Research Council did in November 2010, that “the research is overwhelming that homosexuality poses a [molestation] danger to children.” A related myth is that same-sex parents will molest their children.

THE FACTS
According to the American Psychological Association, children are not more likely to be molested by LGBT parents or their LGBT friends or acquaintances. Gregory Herek, a professor at the University of California, Davis, who is one of the nation’s leading researchers on prejudice against sexual minorities, reviewed a series of studies and found no evidence that gay men molest children at higher rates than heterosexual men.

Anti-gay activists who make that claim allege that all men who molest male children should be seen as homosexual. But research by A. Nicholas Groth, a pioneer in the field of sexual abuse of children, shows that is not so. Groth found that there are two types of child molesters: fixated and regressive. The fixated child molester — the stereotypical pedophile — cannot be considered homosexual or heterosexual because “he often finds adults of either sex repulsive” and often molests children of both sexes. Regressive child molesters are generally attracted to other adults, but may “regress” to focusing on children when confronted with stressful situations. Groth found, as Herek notes, that the majority of regressed offenders were heterosexual in their adult relationships.

The Child Molestation Research & Prevention Institute notes that 90% of child molesters target children in their network of family and friends, and the majority are men married to women. Most child molesters, therefore, are not gay people lingering outside schools waiting to snatch children from the playground, as much religious-right rhetoric suggests.

Some anti-gay ideologues cite ACPeds’ opposition to same-sex parenting as if the organization were a legitimate professional body. In fact, the so-called college is a tiny breakaway faction of the similarly named, 60,000-member American Academy of Pediatrics that requires, as a condition of membership, that joiners “hold true to the group’s core beliefs … [including] that the traditional family unit, headed by an opposite-sex couple, poses far fewer risk factors in the adoption and raising of children.” The group’s 2010 publication Facts About Youth was described by the American Academy of Pediatrics as not acknowledging scientific and medical evidence with regard to sexual orientation, sexual identity and health, or effective health education. Francis Collins, director of the National Institutes of Health, was one of several legitimate researchers who said ACPeds misrepresented the institutes’ findings. “It is disturbing to me to see special interest groups distort my scientific observations to make a point against homosexuality,” he wrote. “The information they present is misleading and incorrect.” Another critic of ACPeds is Dr. Gary Remafedi, a researcher at the University of Minnesota who wrote a letter to ACPeds rebuking the organization for misusing his research.

In spite of all this, the anti-LGBT right continues to peddle this harmful and baseless myth, which is probably the leading defamatory charge leveled against gay people.

MYTH # 2
Same-sex parents harm children.

THE ARGUMENT
Most hard-line anti-gay organizations are heavily invested, from both a religious and a political standpoint, in promoting the traditional nuclear family as the sole framework for the healthy upbringing of children. They maintain a reflexive belief that same-sex parenting must be harmful to children — although the exact nature of that supposed harm varies widely.

THE FACTS
No legitimate research has demonstrated that same-sex couples are any more or any less harmful to children than heterosexual couples.

The American Academy of Child & Adolescent Psychiatry affirmed in 2013 that “[c]urrent research shows that children with gay and lesbian parents do not differ from children with heterosexual parents in their emotional development or in their relationships with peers and adults” and they are “not more likely than children of heterosexual parents to develop emotional or behavioral problems.”

The American Academy of Pediatrics (AAP) in a 2002 policy statement declared: “A growing body of scientific literature demonstrates that children who grow up with one or two gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.” That policy statement wasreaffirmed in 2009 and in 2013, when the AAP stated its support for civil marriage for same-gender couples and full adoption and foster care rights for all parents, regardless of sexual orientation.

The American Psychological Association (APA) noted in 2004 that “same-sex couples are remarkably similar to heterosexual couples, and that parenting effectiveness and the adjustment, development and psychological well-being of children is unrelated to parental sexual orientation.” In addition, the APA stated that “beliefs that lesbian and gay adults are not fit parents have no empirical foundation.” The next year, in 2005, the APA published a summary of research findings on lesbian and gay parents and reiterated that common negative stereotypes about LGBT parenting are not supported by the data.

Similarly, the Child Welfare League of America’s official position with regard to same-sex parents is that “lesbian, gay, and bisexual parents are as well-suited to raise children as their heterosexual counterparts.”

A 2010 review of research on same-sex parenting carried out by LiveScience, a science news website, found no differences between children raised by heterosexual parents and children raised by lesbian parents. In some cases, it found, children in same-sex households may actually be better adjusted than in heterosexual homes.

A 2013 preliminary study in Australia found that the children of lesbian and gay parents are not only thriving, but may actually have better overall health and higher rates of family cohesion than heterosexual families. The study is the world’s largest attempt to compare children of same-sex parents to children of heterosexual parents. The full study was published in June 2014.

The anti-LGBT right continues, however, to use this myth to deny rights to LGBT people, whether through distorting legitimate research or through “studies” conducted by anti-LGBT sympathizers, such as a 2012 paper popularly known as the Regnerus Study. University of Texas sociology professor Mark Regnerus’ paper purported to demonstrate that same-sex parenting harms children. The study received almost $1 million in funding from anti-LGBT think tanks, and even though Regnerus himself admitted that his study does not show what people say it does with regard to the “harms” of same-sex parenting, it continues to be peddled as “proof” that children are in danger in same-sex households. Since the study’s release, it has been completely discredited because of its faulty methodology and its suspect funding. In 2013, Darren Sherkat, a scholar appointed to review the study by the academic journal that published it, told the Southern Poverty Law Center that he “completely dismiss[es]” the study, saying Regnerus “has been disgraced” and that the study was “bad … substandard.” In spring 2014, the University of Texas’s College of Liberal Arts and Department of Sociology publicly distanced themselves from Regnerus, the day after he testified as an “expert witness” against Michigan’s same-sex marriage ban. The judge in that case, Bernard Friedman, found that Regnerus’ testimony was “entirely unbelievable and not worthy of serious consideration,” and ruled that Michigan’s ban on same-sex marriage was unconstitutional. Despite all this, the Regnerus Study is still used in the U.S. and abroad as a tool by anti-LGBT groups to develop anti-LGBT policy and laws.

MYTH # 3
People become homosexual because they were sexually abused as children or there was a deficiency in sex-role modeling by their parents.

THE ARGUMENT
Many anti-gay rights activists claim that homosexuality is a mental disorder caused by some psychological trauma or aberration in childhood. This argument is used to counter the common observation that no one, gay or straight, consciously chooses his or her sexual orientation. Joseph Nicolosi, a founder of the National Association for Research and Therapy of Homosexuality, said in 2009 that “if you traumatize a child in a particular way, you will create a homosexual condition.” He also has repeatedly said, “Fathers, if you don’t hug your sons, some other man will.”

A side effect of this argument is the demonization of parents of gay men and lesbians, who are led to wonder if they failed to protect a child against sexual abuse or failed as role models in some important way. In October 2010, Kansas State University family studies professor Walter Schumm released a related study in the British Journal of Biosocial Science, which used to be the Eugenics Review. Schumm argued that gay couples are more likely than heterosexuals to raise gay or lesbian children through modeling “gay behavior.” Schumm, who has also argued that lesbian relationships are unstable, has ties to discredited psychologist and anti-LGBT fabulist Paul Cameron, the author of numerous completely baseless “studies” about the alleged evils of homosexuality. Critics of Schumm’s study note that he appears to have merely aggregated anecdotal data, resulting in a biased sample.

THE FACTS
No scientifically sound study has definitively linked sexual orientation or identity with parental role-modeling or childhood sexual abuse.

The American Psychiatric Association noted in a 2000 fact sheet available on the Association of Gay and Lesbian Psychiatrists, that dealing with gay, lesbian and bisexual issues, that sexual abuse does not appear to be any more prevalent among children who grow up and identify as gay, lesbian or bisexual than in children who grow up and identify as heterosexual.

Similarly, the National Organization on Male Sexual Victimization notes on its websitethat “experts in the human sexuality field do not believe that premature sexual experiences play a significant role in late adolescent or adult sexual orientation” and added that it’s unlikely that anyone can make another person gay or heterosexual.

Advocates for Youth, an organization that works in the U.S. and abroad in the field of adolescent reproductive and sexual health also has stated that sexual abuse does not “cause” heterosexual youth to become gay.

In 2009, Dr. Warren Throckmorton, a psychologist at the Christian Grove City College,noted in an analysis that “the research on sexual abuse among GLBT populations is often misused to make inferences about causation [of homosexuality].”

MYTH # 4
LGBT people don’t live nearly as long as heterosexuals.

THE ARGUMENT
Anti-LGBT organizations, seeking to promote heterosexuality as the healthier “choice,” often offer up the purportedly shorter life spans and poorer physical and mental health of gays and lesbians as reasons why they shouldn’t be allowed to adopt or foster children.

THE FACTS
This falsehood can be traced directly to the discredited research of Paul Cameron and his Family Research Institute, specifically a 1994 paper he co-wrote entitled  “The Lifespan of Homosexuals.” Using obituaries collected from newspapers serving the gay community, he and his two co-authors concluded that gay men died, on average, at 43, compared to an average life expectancy at the time of around 73 for all U.S. men. On the basis of the same obituaries, Cameron also claimed that gay men are 18 times more likely to die in car accidents than heterosexuals, 22 times more likely to die of heart attacks than whites, and 11 times more likely than blacks to die of the same cause. He also concluded that lesbians are 487 times more likely to die of murder, suicide, or accidents than straight women.

Remarkably, these claims have become staples of the anti-gay right and have frequently made their way into far more mainstream venues. For example, William Bennett, education secretary under President Reagan, used Cameron’s statistics in a 1997 interview he gave to ABC News’ “This Week.”

However, like virtually all of his “research,” Cameron’s methodology is egregiously flawed — most obviously because the sample he selected (the data from the obits) was not remotely statistically representative of the LGBT population as a whole. Even Nicholas Eberstadt, a demographer at the conservative American Enterprise Institute,has called Cameron’s methods “just ridiculous.”

Anti-LGBT organizations have also tried to support this claim by distorting the work of legitimate scholars, like a 1997 study conducted by a Canadian team of researchers that dealt with gay and bisexual men living in Vancouver in the late 1980s and early 1990s. The authors of the study became aware that their work was being misrepresented by anti-LGBT groups, and issued a response taking the groups to task.

MYTH # 5
Gay men controlled the Nazi Party and helped to orchestrate the Holocaust.

THE ARGUMENT
This claim comes directly from a 1995 book titled The Pink Swastika: Homosexuality in the Nazi Party, by Scott Lively and Kevin Abrams. Lively is the virulently anti-gay founder of Abiding Truth Ministries and Abrams is an organizer of a group called the International Committee for Holocaust Truth, which came together in 1994 and included Lively as a member.

The primary argument Lively and Abrams make is that gay people were not victimized by the Holocaust. Rather, Hitler deliberately sought gay men for his inner circle because their “unusual brutality” would help him run the party and mastermind the Holocaust. In fact, “the Nazi party was entirely controlled by militaristic male homosexuals throughout its short history,” the book claims. “While we cannot say that homosexuals caused the Holocaust, we must not ignore their central role in Nazism,” Lively and Abrams add. “To the myth of the ‘pink triangle’ — the notion that all homosexuals in Nazi Germany were persecuted — we must respond with the reality of the ‘pink swastika.'”

These claims have been picked up by a number of anti-gay groups and individuals, including Bryan Fischer of the American Family Association, as proof that gay men and lesbians are violent and sick. The book has also attracted an audience among anti-gay church leaders in Eastern Europe and among Russian-speaking anti-gay activists in America.

THE FACTS
The Pink Swastika has been roundly discredited by legitimate historians and other scholars. Christine Mueller, professor of history at Reed College, did a 1994 line-by-linerefutation of an earlier Abrams article on the topic and of the broader claim that the Nazi Party was “entirely controlled” by gay men. Historian Jon David Wynecken at Grove City College also refuted the book, pointing out that Lively and Abrams did no primary research of their own, instead using out-of-context citations of some legitimate sources while ignoring information from those same sources that ran counter to their thesis.

The myth that the Nazis condoned homosexuality sprang up in the 1930s, started by socialist opponents of the Nazis as a slander against Nazi leaders. Credible historians believe that only one of the half-dozen leaders in Hitler’s inner circle, Ernst Röhm, was gay. (Röhm was murdered on Hitler’s orders in 1934.) The Nazis considered homosexuality one aspect of the “degeneracy” they were trying to eradicate.

When Hitler’s National Socialist German Workers Party came to power in 1933, it quickly strengthened Germany’s existing penalties against homosexuality. Heinrich Himmler, Hitler’s security chief, announced that homosexuality was to be “eliminated” in Germany, along with miscegenation among the races. Historians estimate that between 50,000 and 100,000 men were arrested for homosexuality (or suspicion of it) under the Nazi regime. These men were routinely sent to concentration camps and many thousands died there.

Himmler expressed his views on homosexuality like this: “We must exterminate these people root and branch. … We can’t permit such danger to the country; the homosexual must be completely eliminated.”

MYTH # 6
Hate crime laws will lead to the jailing of pastors who criticize homosexuality and the legalization of practices like bestiality and necrophilia.

THE ARGUMENT
Anti-gay activists, who have long opposed adding LGBT people to those protected by hate crime legislation, have repeatedly claimed that such laws would lead to the jailing of religious figures who preach against homosexuality — part of a bid to gain the backing of the broader religious community for their position. Janet Porter of Faith2Action, for example, was one of many who asserted that the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act — signed into law by President Obama in October 2009 — would “jail pastors” because it “criminalizes speech against the homosexual agenda.”

In a related assertion, anti-gay activists claimed the law would lead to the legalization of psychosexual disorders (paraphilias) like bestiality and pedophilia. Bob Unruh, a conservative Christian journalist who left The Associated Press in 2006 for the right-wing, conspiracist news site WorldNetDaily, said shortly before the federal law was passed that it would legalize “all 547 forms of sexual deviancy or ‘paraphilias’ listed by the American Psychiatric Association.” This claim was repeated by many anti-gay organizations, including the Illinois Family Institute.

THE FACTS
The claim that hate crime laws could result in the imprisonment of those who “oppose the homosexual lifestyle” is false. The First Amendment provides robust protections of free speech, and case law makes it clear that even a preacher who publicly suggested that gays and lesbians should be killed would be protected.

Neither do hate crime laws — which provide for enhanced penalties when persons are victimized because of their “sexual orientation” (among other factors) — “protect pedophiles,” as Janet Porter and many others have claimed. According to the American Psychological Association, sexual orientation refers to heterosexuality, homosexuality and bisexuality — not paraphilias such as pedophilia. Paraphilias, as defined (pdf; may require a different browser) by the American Psychiatric Association, are characterized by sexual urges or behaviors directed at non-consenting persons or those unable to consent like children, or that involve another person’s psychological distress, injury, or death.

Moreover, even if pedophiles, for example, were protected under a hate crime law — and such a law has not been suggested or contemplated anywhere — that would not legalize or “protect” pedophilia. Pedophilia is illegal sexual activity, and a law that more severely punished people who attacked pedophiles would not change that.

MYTH # 7
Allowing gay people to serve openly will damage the armed forces.

THE ARGUMENT
Anti-gay groups have been adamantly opposed to allowing gay men and lesbians to serve openly in the armed forces, not only because of their purported fear that combat readiness will be undermined, but because the military has long been considered the purest meritocracy in America (the armed forces were successfully racially integrated long before American civil society, for example). If gays serve honorably and effectively in this meritocracy, that suggests that there is no rational basis for discriminating against them in any way.

THE FACTS
Gays and lesbians have long served in the U.S. armed forces, though under the “Don’t Ask, Don’t Tell” (DADT) policy that governed the military between 1993 and 2011, they could not do so openly. At the same time, gays and lesbians have served openly for years in the armed forces of 25 countries (as of 2010), including Britain, Israel, South Africa, Canada and Australia, according to a report released by the Palm Center, a policy think tank at the University of California at Santa Barbara. The Palm Center report concluded that lifting bans against openly gay service personnel in these countries “ha[s] had no negative impact on morale, recruitment, retention, readiness or overall combat effectiveness.” Successful transitions to new policies were attributed to clear signals of leadership support and a focus on a uniform code of behavior without regard to sexual orientation.

A 2008 Military Times poll of active-duty military personnel, often cited by anti-gay activists, found that 10% of respondents said they would consider leaving the military if the DADT policy were repealed. That would have meant that some 228,000 people might have left the military the policy’s 2011 repeal. But a 2009 review of that poll by the Palm Center suggested a wide disparity between what soldiers said they would do and their actual actions. It noted, for example, that far more than 10% of West Point officers in the 1970s said they would leave the service if women were admitted to the academy. “But when the integration became a reality,” the report said, “there was no mass exodus; the opinions turned out to be just opinions.” Similarly, a 1985 survey of 6,500 male Canadian service members and a 1996 survey of 13,500 British service members each revealed that nearly two-thirds expressed strong reservations about serving with gays. Yet when those countries lifted bans on gays serving openly, virtually no one left the service for that reason. “None of the dire predictions of doom came true,” the Palm Center report said.

Despite the fact that gay men and lesbians have been serving openly in the military since September 2011, anti-LGBT groups continue to claim that openly gay personnel are causing problems in the military, including claims of sexual abuse by gay and lesbian soldiers of straight soldiers. The Palm Center refutes this claim, and in an analysis, found that repealing DADT has had “no overall negative impact on military readiness or its component dimensions,” including sexual assault. According to then-Secretary of Defense Leon Panetta in 2012, the repeal of DADT was being implemented effectively and was having no impact on readiness, unit cohesion or morale. Panetta also issued an LGBT Pride message in 2012.

MYTH # 8
Gay people are more prone to be mentally ill and to abuse drugs and alcohol.

THE ARGUMENT
Anti-LGBT groups want not only to depict sexual orientation as something that can be changed but also to show that heterosexuality is the most desirable “choice,” even if religious arguments are set aside. The most frequently used secular argument made by anti-LGBT groups in that regard is that homosexuality is inherently unhealthy, both mentally and physically. As a result, most anti-LGBT rights groups reject the 1973 decision by the American Psychiatric Association (APA) to remove homosexuality from its list of mental illnesses. Some of these groups, including the particularly hard-lineTraditional Values Coalition, claim that “homosexual activists” managed to infiltrate the APA in order to sway its decision.

THE FACTS
All major professional mental health organizations are on record as stating that homosexuality is not a mental disorder.

The American Psychological Association states that being gay is just as healthy as being straight, and noted that the 1950s-era work of Dr. Evelyn Hooker started to dismantle this myth. In 1975, the association issued a statement that said, in part, “homosexuality per se implies no impairment in judgment, reliability or general social and vocational capabilities.” The association has clearly stated in the past that “homosexuality is neither mental illness nor mental depravity. … Study after study documents the mental health of gay men and lesbians. Studies of judgment, stability, reliability, and social and vocational adaptiveness all show that gay men and lesbians function every bit as well as heterosexuals.”

The American Psychiatric Association states that (PDF; may not open in all browsers) homosexuality is not a mental disorder and that all major professional health organizations are on record as confirming that. The organization removed homosexuality from its official diagnostic manual in 1973 after extensive review of the scientific literature and consultation with experts, who concluded that homosexuality is not a mental illness.

Though it is true that LGBT people tend to suffer higher rates of anxiety, depression, and depression-related illnesses and behaviors like alcohol and drug abuse than the general population, that is due to the historical social stigmatization of homosexuality and violence directed at LGBT people, not because of homosexuality itself. Studies done during the past several years have determined that it is the stress of being a member of a minority group in an often-hostile society — and not LGBT identity itself — that accounts for the higher levels of mental illness and drug use.

Richard J. Wolitski, an expert on minority status and public health issues at the Centers for Disease Control and Prevention, put it like this in 2008: “Economic disadvantage, stigma, and discrimination … increase stress and diminish the ability of individuals [in minority groups] to cope with stress, which in turn contribute to poor physical and mental health.”

Even as early as 1994, external stressors were recognized as a potential cause of emotional distress of LGBT people. A report presented by the Council on Scientific Affairs to the AMA House of Delegates Interim Meeting with regard to reparative (“ex-gay”) therapy noted that most of the emotional disturbance gay men and lesbians experience around their sexual identity is not based on physiological causes, but rather on “a sense of alienation in an unaccepting environment.”

In 2014, a study, conducted by several researchers at major universities and the Rand Corporation, found that LGBT people living in highly anti-LGBT communities and circumstances face serious health concerns and even premature death because of social stigmatization and exclusion. One of the researchers, Dr. Mark Hatzenbuehler, a sociomedical sciences professor at the Mailman School of Public Health at Columbia University, said that the data gathered in the study suggests that “sexual minorities living in communities with high levels of anti-gay prejudice have increased risk of mortality, compared to low-prejudice communities.”

Homosexuality is not a mental illness or emotional problem and being LGBT does not cause someone to be mentally ill, contrary to what anti-LGBT organizations say. Rather,social stigmatization and prejudice appear to contribute to health disparities in the LGBT population, which include emotional and psychological distress and harmful coping mechanisms.

MYTH # 9
No one is born gay.

THE ARGUMENT
Anti-gay activists keenly oppose the granting of “special” civil rights protections to gay people similar to those afforded black Americans and other minorities. But if people are born gay — in the same way that people have no choice as to whether they are black or white — discrimination against gay men and lesbians would be vastly more difficult to justify. Thus, anti-gay forces insist that sexual orientation is a behavior that can be changed, not an immutable characteristic.

THE FACTS
Modern science cannot state conclusively what causes sexual orientation, but a great many studies suggest that it is the result of both biological and environmental forces, not a personal “choice.” A 2008 Swedish study of twins (the world’s largest twin study) published in The Archives of Sexual Behavior concluded that “[h]omosexual behaviour is largely shaped by genetics and random environmental factors.” Dr. Qazi Rahman, study co-author and a leading scientist on human sexual orientation, said: “This study puts cold water on any concerns that we are looking for a single ‘gay gene’ or a single environmental variable which could be used to ‘select out’ homosexuality — the factors which influence sexual orientation are complex. And we are not simply talking about homosexuality here — heterosexual behaviour is also influenced by a mixture of genetic and environmental factors.” In other words, sexual orientation in general — whether homosexual, bisexual or heterosexual — is a mixture of genetic and environmental factors.

The American Psychological Association (APA) states that sexual orientation “ranges along a continuum,” and acknowledges that despite much research into the possible genetic, hormonal, social and cultural influences on sexual orientation, scientists have yet to pinpoint the precise causes of sexual orientation. Regardless, the APA concludes that “most people experience little or no sense of choice about their sexual orientation.” In 1994, the APA noted that “homosexuality is not a matter of individual choice” and that research “suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth.”

The American Academy of Pediatrics stated in 1993 (updated in 2004) that “homosexuality has existed in most societies for as long as recorded descriptions of sexual beliefs and practices have been available” and that even at that time, “most scholars in the field state that one’s sexual orientation is not a choice … individuals do not choose to be homosexual or heterosexual.”

There are questions about what specifically causes sexual orientation in general, but most current science acknowledges that it is a complex mixture of biological, environmental, and possibly hormonal factors but that no one chooses an orientation.

MYTH # 10
Gay people can choose to leave homosexuality.

THE ARGUMENT
If people are not born gay, as anti-gay activists claim, then it should be possible for individuals to abandon homosexuality. This view is buttressed among religiously motivated anti-gay activists by the idea that homosexual practice is a sin and humans have the free will needed to reject sinful urges.

A number of “ex-gay” religious ministries have sprung up in recent years with the aim of teaching gay people to become heterosexuals, and these have become prime purveyors of the claim that gays and lesbians, with the aid of mental therapy and Christian teachings, can “come out of homosexuality.” The now defunct Exodus International, the largest of these ministries, once stated, “You don’t have to be gay!” Meanwhile, in a more secular vein, the National Association for Research and Therapy of Homosexuality describes itself as “a professional, scientific organization that offers hope to those who struggle with unwanted homosexuality.”

THE FACTS
“Reparative” or sexual reorientation therapy — the pseudo-scientific foundation of the ex-gay movement — has been rejected by all the established and reputable American medical, psychological, psychiatric and professional counseling organizations. In 2009, for instance, the American Psychological Association adopted a resolution, accompanied by a 138-page report, that repudiated ex-gay therapy. The report concluded that compelling evidence suggested that cases of individuals going from gay to straight were “rare” and that “many individuals continued to experience same-sex sexual attractions” after reparative therapy. The APA resolution added that “there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and asked “mental health professionals to avoid misrepresenting the efficacy of sexual orientation change efforts by promoting or promising change in sexual orientation.” The resolution also affirmed that same-sex sexual and romantic feelings are normal.

A very large number of professional medical, scientific and counseling organizations in the U.S. and abroad have issued statements regarding the harm that reparative therapy can cause, particularly if it’s based on the assumption that homosexuality is unacceptable. As early as 1993, the American Academy of Pediatrics stated that“[t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving change in orientation.”

The American Medical Association officially opposes reparative therapy that is “based on the assumption that homosexuality per se is a mental disorder or based on an a priori assumption that the person should change his/her homosexual orientation.”

The Pan-American Health Organization, the world’s oldest international public health agency, issued a statement in 2012 that said, in part: “Services that purport to ‘cure’ people with non-heterosexual sexual orientation lack medical justification and represent a serious threat to the health and well-being of affected people.” The statement continues, “In none of its individual manifestations does homosexuality constitute a disorder or an illness, and therefore it requires no cure.”

Some of the most striking, if anecdotal, evidence of the ineffectiveness of sexual reorientation therapy has been the numerous failures of some of its most ardent advocates. For example, the founder of Exodus International, Michael Bussee, left the organization in 1979 with a fellow male ex-gay counselor because the two had fallen in love. Other examples include George Rekers, a former board member of NARTH and formerly a leading scholar of the anti-LGBT Christian right who was revealed to have been involved in a same-sex tryst in 2010. John Paulk, former poster child of the massive ex-gay campaign “Love Won Out” in the late 1990s, is now living as a happy gay man. And Robert Spitzer, a preeminent psychiatrist whose 2001 research that seemed to indicate that some gay people had changed their orientation, repudiated his own studyin 2012. The Spitzer study had been widely used by anti-LGBT organizations as “proof” that sexual orientation can change.

In 2013, Exodus International, formerly one of the largest ex-gay ministries in the world, shut down after its director, Alan Chambers, issued an apology to the LGBT community. Chambers, who is married to a woman, has acknowledged that his same-sex attraction has not changed. At a 2012 conference, he said: “The majority of people that I have met, and I would say the majority meaning 99.9% of them, have not experienced a change in their orientation or have gotten to a place where they could say they could never be tempted or are not tempted in some way or experience some level of same-sex attraction.”

Mr.Gaynor has been ordered by the NSW Civil Administrative Tribunal’s Appeal Panel to pay Mr.Burns “costs”.

bernard_gaynor

Civil and Administrative Tribunal
NSW CrestNew South Wales

Medium Neutral Citation:
Gaynor v Burns [2015] NSWCATAP 150
Hearing dates:
By written submissions 3 June 2015; 10 and 11 June 2015
Date of orders:
23 July 2015
Decision date:
23 July 2015
Jurisdiction:
Appeal Panel
Before:
Boland J ADCJ, Deputy President
Emeritus Professor M Chesterman, Principal Member
L Robberds, QC, Senior Member
Decision:
1. The appellant shall pay the costs of and incidental to the appeal including the submissions on costs as agreed and failing agreement within 28 days of the date of this order as assessed under Part 4.3 Div 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).
2. The costs agreed or assessed under Order 1 of these orders shall be payable within 14 days of agreement or assessment.
Catchwords:
APPEAL – application for costs of appeal allowed by consent. Whether there are “special circumstances” for the purposes of s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). Whether costs order should be made in favour of respondent to the appeal. Whether costs should be payable “forthwith”.
Legislation Cited:
Administrative Decisions Tribunal Act 1997 (NSW) (repealed)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Suitors Fund Act 1957 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:
Cabal v United Mexican States [2000] FCA 7
CPD Holdings Pty Ltd t/a The Bathroom Exchange v Baguley [2015] NSWCATAP 21
Cripps v G & M Dawson [2006] NSWCA 81
Fiduciary Limited and Anor v Morningstar Research Pty Ltd & Ors [2002] NSWCA 432
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWATAP 120
Category:
Costs
Parties:
Bernard Gaynor (Appellant)
Garry Burns (Respondent)
Representation:
Counsel:
P King (Appellant)
K Nomchong SC (Respondent)
Solicitors:
Robert Balzola and Associates (Appellant)
K & L Gates (Respondent)
File Number(s):
AP 15/05125
Publication restriction:
None
Decision under appeal
Court or tribunal:Civil and Administrative TribunalJurisdiction:Administrative and Equal Opportunity DivisionCitation:[2015] NSWCATAD 24Date of Decision:20 January 2015Before:Hennessy LCM, Deputy PresidentFile Number(s):1410372

REASON FOR DECISION

Introduction

  1. On 27 April 2015 the appeal panel commenced to hear an application for leave to appeal, and if granted, an appeal lodged by Mr Bernard Gaynor (Mr Gaynor) against orders made by Hennessy LCM, Deputy President on 20 January 2015. Before her Honour Mr Gaynor sought orders that proceedings in respect of three complaints made against him by Mr Garry Burns (Mr Burns) should be summarily dismissed. Those proceedings were allocated file number 1410372. The summary dismissal application that was brought under s 102 of the Anti-Discrimination Act 1977 (NSW) was refused by her Honour, Hennessy LCM.
  2. Before us, after a short adjournment, the parties agreed in circumstances more fully set out below, that orders should be made by us by consent granting leave to appeal, and allowing the appeal. The orders made by Hennessy LCM were set aside. Further orders were made remitting the summary dismissal application for re-hearing and a time-table made for the filing of submissions on costs. Submissions were received from Mr Burns on 3 June 2015 and Mr Gaynor on 10 and 11 June 2015.
  3. In his submissions Mr Burns seeks orders from the appeal panel as follows:
  1. The Respondent seeks order that:
  1. the Appellant pay the Respondent’s costs of and incidental to the appeal proceedings up to and including this costs application;
  2. that the costs so ordered shall be as agreed or assessed;
  3. that costs shall be payable forthwith.
  1. In his submissions Mr Gaynor opposes any order being made in respect of costs. He submits that there should be no departure from s 60 (1) of the Civil and Administrative Tribunal Act 2013 (NSW), namely, that each party pay that party’s own costs of the proceedings.

Background

  1. To give context to the present competing applications it is necessary that we refer to factual aspects of the proceedings before her Honour, Hennessy LCM.
  2. Mr Burns complained to the Anti-Discrimination Board (the Board) in May 2014 alleging three complaints of unlawful discrimination under s 49 ZT of the Anti-Discrimination Act by Mr Gaynor. The complaints were referred to the Tribunal in June 2014. We will refer to these complaints as Complaints 1, 2 and 3. The file number allocated to these complaints is 1310372.
  3. On 13 August 2014 Mr Burns filed Points of Claim in the proceedings in respect of Complaints 1, 2 and 3.
  4. In about October/November 2014 Mr Burns lodged a further complaint with the Board (Complaint 4) about Mr Gaynor’s conduct. This became proceedings file number 14766. Subsequently, but within the same time period, he filed with the Board further complaints, also about Mr Gaynor’s conduct (Complaints 5, 6 and 7). Those complaints were allocated file nos 14834, 14716 and 14842 respectively.
  5. On 8 December 2014 Mr Gaynor filed an interlocutory application seeking orders, including orders that the proceedings, (which related to Complaints 1,2 and 3), be struck out. In support of this application Mr Gaynor relied on an affidavit sworn by his solicitor, Mr Robert Balzola (Mr Balzola) and filed on 8 December 2014. Mr Balzola annexed to his affidavit Mr Gaynor’s response to Complaints 4, 5, 6 and 7. The content of the response was not relevant to the interlocutory application.
  6. At the hearing before her Honour on 20 January 2015, in addition to Mr Balzola’s affidavit, Mr Gaynor filed and sought to rely on an affidavit that annexed a large quantity of material comprising some two volumes. Because of the late filing of Mr Gaynor’s affidavit, her Honour only admitted into evidence on the interlocutory application specific parts of the annexures to Mr Gaynor’s affidavit to which she was directed by Mr Balzola, and Mr Balzola’s affidavit.
  7. At the commencement of the appeal, it was submitted on behalf of Mr Burns that her Honour had fallen into error in determining the application. It was submitted in refusing to summarily dismiss the proceedings her Honour’s reasons made it clear that she had mistakenly relied on the material annexed to Mr Balzola’s affidavit that related to Complaints 4 to 7 inclusive and not Complaints 1 to 3.
  8. Both parties acknowledged before us that, at no time during the hearing, did either party point out to her Honour that the material annexed to Mr Balzola’s affidavit had no direct relevance to the issues to be determined by her on the summary dismissal application. Nor was any attempt made to correct her Honour’s misapprehension during the course of the delivery of her oral reasons. Further, the grounds of appeal set out in the Notice of Appeal and as further elaborated in the document filed on 24 March 2015 entitled “Outline of Case of the Appellant” (Restatement of Grounds of Appeal under Item 12A of the Notice of Appeal filed 30 January 2015) do not raise her Honour’s mistaken reliance on the annexures to Mr Balzola’s affidavit.
  9. Before us, Ms K Nomchong SC, (Ms Nomchong), who appeared for Mr Burns on the hearing of the appeal, most appropriately, conceded that leave to appeal should be granted, and the appeal allowed. We record that Ms Nomchong helpfully identified the background that explained how the error occurred in her Honour’s reasons.
  10. Mr P King (Mr King), counsel for Mr Gaynor, having the benefit of Ms Nomchong’s submissions, obtained instructions from his client. Ultimately, the parties asked that we make consent orders granting leave to appeal and allowing the appeal. We also made a number of orders and directions staying various other proceedings between the parties until the hearing of the summary dismissal application.

The relevant law

  1. It is not subject of dispute that s 60 of the Civil and Administrative Tribunal Act governs this application. It provides as follows:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(5) In this section:”costs” includes:

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

  1. The words “special circumstances” appear in a number of legislative provisions, and have been subject of discussion and comment in respect of the relevant legislation under consideration in each case (see Cabal v United Mexican States [2000] FCA 7) and in this Tribunal (see CPD Holdings Pty Ltd t/a The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchain v Kurmond Homes Pty Ltd [2014] NSWCATAP 120).
  2. The Macquarie Dictionary defines “special” as follows:
  1. Of a distinct or particular character.

…   .

(6) Distinguished or different from what is ordinary or usual: special circumstances.

  1. The drafting of s 60(1) evinces the intent of the legislature that generally each party to proceedings in the Tribunal shall be responsible for their own costs. Departure from s 60 (1) may occur but only if the Tribunal finds, there are “special circumstances” warranting it to do so. In determining whether there are special circumstances the Tribunal may, in a structured exercise of discretion, have regard to the criteria in s 60 (3) (a) – (g).
  2. In Cripps v G & M Dawson [2006] NSWCA 81 Santow JA considered the words “special circumstances” as they appeared in s 88 (1) of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed). That provision enabled the Tribunal to award costs in relating to proceedings before it only if it was satisfied there were “special circumstances warranting an award of costs”. Santow JA set out the Tribunal’s statement of relevant principle at [18] – [19] of its reasons and concluded that the Tribunal had erred in its application of those principles in failing to find “special circumstances” explaining at [60]

60   It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and the doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.

[our emphasis]

The parties submissions

Mr Burn’s submissions

  1. We do not intend to repeat each and every submission made by the parties in their extensive written submissions. So far as we are able to discern the broad thrust of the submissions of Mr Burns focus firstly on s 60 (3) (d) (the nature and complexity of the proceedings). He points out that Mr Gaynor sought to adduce fresh evidence on the appeal “in the form of an additional 800 pages of material that was not before DP Hennessy” and this action, he asserts, rendered the appeal complex.
  2. Secondly, it is submitted, again we infer relying on s 60 (3) (d), that it was Mr Gaynor’s conduct at first instance “that complicated the proceedings and misdirected the Tribunal at first instance as to the scope of the Substantive Proceedings”. It is also asserted that this conduct in some way “unnecessarily disadvantaged the Respondent” and is relevant under s 60 (3) (a).
  3. Thirdly, and it appears the primary submission of Mr Burns is, that Mr Gaynor’s conduct in the drafting of the Notice of Appeal relying on “complicated and unnecessary grounds”, rather than the identified error relating to Complaints 4-7 is a special circumstance. Thus, it is submitted by failing to properly identify, in a timely manner, the error it is asserted was conceded at the appeal hearing, Mr Burns was denied the opportunity at an early stage to concede the appeal. It is asserted he was further disadvantaged by the late filing of the voluminous material sought to be adduced as fresh evidence on the appeal as this diverted attention away from the “real basis” of the appeal and resulted in Mr Burns incurring unnecessary costs.
  4. It is finally submitted that Mr Gaynor did not comply with the duty imposed on him under s 36(3) of the Civil and Administrative Tribunal Act. That provision requires parties to co-operate with the Tribunal and to act in accordance with the guiding principle in the legislation namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

Mr Gaynor’s submissions

  1. By contrast, in the submissions prepared for Mr Gaynor by his counsel, Mr King, it is submitted that Mr Gaynor did not conduct the proceedings in a way that disadvantaged Mr Burns. It is submitted that “The Deputy President confused the material issues before her”. It is noted that “[t]he Tribunal accepted the Appellant’s submissions as to the appropriate orders to be made”.
  2. In dealing with the application to adduce fresh evidence, the submissions acknowledge, at [13], that Mr Gaynor did file a lengthy affidavit “which annexed evidence of each of the many complaints made by Mr Burns against him”. It is asserted this evidence was sought to be adduced to demonstrate “the vexatious point on which the appeal ultimately did not turn”. Later, in the same paragraph, it is noted:

Again, at the hearing of the appeal, both parties focussed on the key issues in the internal appeal and they were conceded or not in issue. Before the Tribunal, if it matters, Mr Gaynor surrendered points pursuant to CAT Act section 36(3).

  1. Relying on s 60 (3)(c) it is submitted on Mr Gaynor’s behalf that consideration should be given to the fact he was successful in having leave granted and the appeal allowed.
  2. At [15] it is asserted that Mr Gaynor was successful in respect of appeal ground 1. That ground, as set out in the Notice of Appeal filed on 30 January 2015, is as follows:

Pursuant to s 80 Civil Procedures Act, the decision is wrong in fact and law.

  1. We pause to note that s 80 of the Civil and Administrative Tribunal Act (to which we assume Ground 1 in the Notice of Appeal refers) provides in sub-section (2) that an internal appeal may be made in the case of an interlocutory decision of the Tribunal with leave of the Tribunal and in respect of any other decision “as of right on a question of law, or with leave of the Appeal Panel on any other grounds”
  2. However, attached to the Notice of Appeal is a document headed “Application for Leave to Appeal”. The first ground set out in that document is as follows:

Because the decision of the Presiding Magistrate was in error.

  1. In dealing with the submission that Mr Balzola’s affidavit or conduct led to the error that occurred it is asserted at [17]:

…Mr Balzola, consistently with his duty to his client who resided in Queensland merely placed material before the Tribunal, and Mr Burns was entitled to object to the whole or parts of that material but did not do so. He consented to its admission. Further nothing said by the Deputy President on the transcript indicates that the Tribunal apparently misconceived the case before committing itself to Judgement several weeks later . Finally, and most importantly the interlocutory application before the Deputy President made it clear that there were 13 complaints referred to as part of the vexation case, as distinct from the point about addressing the 4 (later 3) complaints of Mr Burns to the ADB the subject of the proposed dismissal. Nothing said by Mr Balzola misled the Tribunal which appears to have proceeded, incorrectly, upon a certainty that Mr Burn’s position was strong, and Mr Gaynor was wrong.

  1. The submissions then canvas matters which Mr Gaynor seeks to agitate on the re-hearing of the interlocutory application relating to jurisdiction. It is unnecessary we refer to those submissions.
  2. It is submitted that the appeal was conceded but that it was necessary for the Tribunal (the appeal panel) to “examine the nature and character of the 4, later 3, complaints, which also exposed the reasons proceeded on a misconception. It was the latter that was conceded on the appeal”.
  3. The submissions conclude noting that s 60 (3) (e) favours Mr Gaynor who was successful in the appeal, and that he complied with s 36(3) as he did not press the jurisdictional and constitutional points as he already had “a sufficient concession to win the appeal”.

Section 60 (3)

  1. We consider it is helpful to examine and discuss the matters raised in the submissions, and the transcript before her Honour in the context of s 60 (3) to determine whether there are special circumstances.

Whether either party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings

  1. Before commencing our discussion, it is necessary that we point out that although the parties obtained a CD of the transcript of the proceedings before her Honour, they did not obtain the authorised transcript. Mr Burns annexed to his submissions an unauthorised typed transcript of the hearing. We have listened to the CD and satisfied ourselves that the transcript which we quote below accurately reflects the sound recording on the CD.
  2. There are several matters that are relevant to this sub-section. First, there is no doubt that Mr Gaynor relied on Mr Balzola’s affidavit. In his affidavit Mr Balzola deposed as follows:
  1. I am the solicitor for the respondent.
  2. This affidavit is made in support of an Application for Interim Orders dated 8 December 2014.
  3. I attached and mark with the letter “A” a true and accurate copy of a document titled “Response to Complaints 2014/0766, 2014/0834, 2014/0842” dated 28 November 2014.
  1. The annexure to Mr Balzola’s affidavit is a 9 page statement of Mr Gaynor. The statement deals in detail with Mr Gaynor’s response to Complaints 4 to 7. That document was of no, or at its highest, of very limited relevance to the application for summarly dismissal of Complaints 1, 2 and 3. No attempt was made by Mr Balzola to draw her Honour’s attention to the fact that the material relied on by Mr Gaynor related to other complaints. It was the only material filed in support of the application until the late filing of the voluminous material sought to be relied on at the hearing itself. During the course of his submissions Mr Balzola made it clear that reliance was placed on all material before her Honour. Mr Balzola said:

We read the whole of the affidavits but we’re highlighting specific examples for you.

  1. However, Mr Balzola only drew her Honour’s attention to specific parts of the late filed affidavit of Mr Gaynor to demonstrate that Mr Burns’ conduct in lodging complaints with the Board was vexatious. He did not address the issue of why Complaints 1, 2 and 3 themselves were frivolous and vexatious and ought be dismissed summarily.
  2. In his submissions before her Honour, Mr Burns specifically referred to his Points of Claim. Those points of claim relate only to Complaints 1, 2 and 3. He submitted that the matters raised in the three complaints were serious ones that would be substantiated at the final hearing.
  3. At the conclusion of his submissions, her Honour pointed out to Mr Burns that:

There’s been no attack on the substance of the complaints themselves. The only submission and only evidence I’ve been taken to is about your motivation. So you needn’t take me to any of these because there’s been nothing said today about the substance.

  1. Her Honour’s reasons clearly demonstrate in [6] that she relied in reaching her decision on the response to Complaints 4-7 of Mr Gaynor that was annexed to Mr Balzola’s affidavit. That is, her Honour read that material as she was requested to do by Mr Balzola without qualification or explanation of its relevance to the application before her.
  2. While we note Mr Gaynor’s submissions refer to Mr Balzola’s duty to his client, they are silent as to Mr Gaynor’s duty to the Tribunal including the duty to address the real issue/s in dispute, and the evidence relevant to those issues. This latter duty is particularly relevant in an interlocutory application heard in a busy duty list as was the case in this matter. The material annexed to Mr Balzola’s affidavit is detailed and required considerable reading time by her Honour. But as we have earlier noted it was irrelevant to the summary dismissal application before her Honour.
  3. We accept that reliance in an application for summary dismissal on material not relevant to that application, together with the late filing of the extensive material at first instance was likely to have unnecessarily disadvantaged Mr Burns.
  4. The second relevant matter is the Notice of Appeal and the submissions relied on in the appeal by Mr Gaynor. We accept that the annexure to this document does, in general terms, refer to error (unspecified) by her Honour. The submissions filed in support of the appeal by Mr Gaynor however fail to identify the mistake, which occurred by her Honour basing her reasoning on an examination of the matters raised in the response annexed to Mr Balzola’s affidavit.
  5. Mr King’s submissions at [10] and [11] assert her Honour’s “error” was not identifying that the material the subject of the complaint was material published on Mr Burn’s own web-site. We note that her Honour dealt with this issue at [15] of her reasons finding it was a factual matter to be determined at the substantive hearing. It was not the basis on which Mr Burns consented to leave being granted to appeal and the appeal being dismissed.
  6. We also note that Mr King’s submissions on costs explicitly refer to the fact that jurisdictional and constitutional grounds set out in the Notice of Appeal were not relied on in the consent orders made by us.
  7. The final matter to which we have given weight is the application to adduce further evidence on the appeal. That material, which was served on Mr Burns, was voluminous. We accept it is highly likely that the serving of that material on Mr Burns distracted attention from the real error and there is merit in his submission that he would have earlier conceded the appeal had the true error been identified by Mr Gaynor.

Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings

  1. While there have been delays in the hearing of the appeal we do not consider those delays can be sheeted home to either party to the proceedings.
  2. We reject the submission made on behalf of Mr Gaynor that we should dismiss this application on the basis that Mr Burns did not comply with the orders and directions made by us for the filing of submissions in respect of the costs. We accept that time for filing submissions ran from the receipt of the sound recording of the proceedings before her Honour, and that late filing of the submissions by one day, while regrettable, does not warrant the dismissal of the application for costs.

The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in law.

  1. Mr Gaynor relies on this sub-section noting that he was successful in that leave was granted, the appeal allowed and the hearing for summary dismissal remitted for re-hearing. Ordinarily, in a jurisdiction where costs follow the event, that fact would be a compelling if not determinative matter to take into account. While we give weight to this factor, it is a matter to be balanced with all other matters relevant to our fact finding exercise in respect of “special circumstances”.

The nature and complexity of the proceedings

  1. We have already extensively discussed matters relevant to this sub-section in our discussion of s 60 (3) (a). We repeat our earlier findings.

Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance

  1. We do not consider there are any relevant matters to be considered by us under this sub-section.

Whether a party has refused or failed to comply with the duty imposed by section 36 (3)

  1. Each party submitted the other party had not acted in accordance with the guiding principle. It is submitted on Mr Gaynor’s behalf that he did not extend the appeal hearing by reliance on the jurisdictional and constitutional grounds asserted in the Notice of Appeal.
  2. Mr Burns asserts that, had Mr Gaynor’s submissions or appeal grounds identified the error at an early point in time, he would have conceded the appeal prior to the hearing. Both these submissions have some substance.

Any other matter the Tribunal considers relevant

  1. We note that Mr Gaynor’s submissions assert her Honour “misconceived the case before committing [herself] to Judgement several weeks later”. This submission is misleading. Her Honour gave oral reasons for decision at the conclusion of the application on 20 January 2015. Her settled written reasons were published several weeks later after a request was received by the Tribunal. Her Honour did not reserve her decision. Further the submissions state:

Nothing said by Mr Balzola misled the Tribunal, which appears to have proceeded, incorrectly, upon a certainty that Mr Burns’ position was strong, and Mr Gaynor was wrong.

  1. We reject, insofar as that submission appears to carry an inference that her Honour was in some way biased against Mr Gaynor, this assertion. The inferred assertion lacks any proper basis.

Conclusions – special circumstances

  1. While there is no dispute that a mistake was made by her Honour in dealing with matters relevant to Complaints 4-7 in determining to dismiss Mr Gaynor’s application for summary dismissal, that error must lay substantially at the feet of Mr Balzola in asking her Honour to read his affidavit which, in reality was to put before her Honour Mr Gaynor’s attack on Complaints 4-7. The consequent error led to the application for leave to appeal.
  2. More significantly, the mistake made by her Honour was not identified in the Notice of Appeal or the submissions filed on Mr Gaynor’s behalf. The correlation between the response document and her Honour’s reasons was first exposed in the submissions made by Ms Nomchong and highlighted in the helpful chronology she prepared. It was then readily admitted by Mr Burns that leave should be granted, the appeal allowed and the matter remitted for re-hearing. It was only after Mr Burns’ position was enunciated before the Tribunal that instructions were obtained by Mr King and the appeal allowed.
  3. We are satisfied these two matters constitute “special circumstances”.

Should the Tribunal make a costs order, and if so on what terms?

  1. We note the power to award costs under s 60 (2) is discretionary, and such an order can only be made if the Tribunal finds, as we have, that there are special circumstances.
  2. As presently in force, the Suitors Fund Act 1951 (NSW) has no application in this Tribunal so no resort can be made to under that Act for compensation as may occur in civil proceedings in superior courts.
  3. Further, it is the plain intent of the legislature that, for the most part, parties should each bear their own costs with the aim of facilitating affordable litigation. However, our discussion below indicates a making of a costs order is appropriate in this case.
  4. We are cognisant in this case of the following factors:
  1. The material put before the Tribunal by Mr Balzola was the prime factor in her Honour mistakenly relying on an irrelevant document.
  2. Mr Burns did not discern the error during the hearing and object to the material being read. But he was met with having to deal with a voluminous affidavit only filed shortly prior to the hearing. In these circumstances his failure to object is unsurprising.
  3. Mr Gaynor’s Notice of Appeal together with its annexures and submissions on the appeal failed to identify the error which we are satisfied ultimately led to the consent orders allowing the appeal. Further voluminous material sought to be adduced as fresh evidence addressed other issues not before her Honour or relevant to the identified error.
  4. The appeal was readily conceded once Mr Burns’ senior counsel read the application for summary dismissal, the material before her Honour, the reasons for decision, and identified the error.
  1. Weighing and balancing these competing matters, and considering the policy objective of the legislation, we consider the facts warranting the making of the costs order outweigh the matter raised by Mr Gaynor, and that Mr Burns should be entitled to costs of the appeal including the preparation of the submissions on costs.

Should the costs be payable forthwith?

  1. Mr Burns seeks an order that costs should be payable “forthwith”. An order in those terms is opposed by Mr Gaynor.
  2. Rule 42.7(2) of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR) provides that, unless the court otherwise orders, costs awarded in respect of an interlocutory application do not become payable until the conclusion of the proceedings. The underlying policy considerations reflected in this rule are self-evident. But the UCPR do not apply to the Tribunal. Thus, the Tribunal may, in appropriate circumstances, in the exercise of its discretion, order costs shall be payable prior to the conclusion of proceedings. In doing so, it appears to us the same policy considerations that underlie Rule 42.7 and the authorities dealing with the rule are relevant matters to take into account. In Fiduciary Limited v Moriningstar Research Pty Ltd [2002] NSWSC 432 at [11]- [13] Barrett J, in dealing with a similar provision in the Supreme Court Rules then in force, identified factors relevant in respect of making an order for costs of interlocutory proceedings to be payable forthwith. The identified factors are:
  1. The matter involves the determination of a separately identified matter.
  2. Unreasonable conduct by the party against whom costs have been awarded.
  3. Anticipated lengthy delay before the proceedings will be concluded
  1. We are satisfied in this case, having regard to our findings, that the first two matters identified by Barrett J are relevant to the exercise of our discretion. Accordingly, we find that the costs in this matter should be paid within a defined period and not at the conclusion of the proceedings.
  2. While we accept we could make an order for a specific sum to be paid within a specified time period, there is simply no evidence before us to enable us to make an informed assessment of a proper quantum of costs to be paid. Rather, we propose to provide the parties an opportunity to reach agreement on costs within 28 days of publication of these reasons, failing which costs may be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) Part 4.3 Div 7 as provided in s 60 (4) of the Civil and Administrative Tribunal Act. The costs shall be payable 14 days after agreement or assessment.

ORDERS

  1. The appellant shall pay the costs of and incidental to the appeal of the respondent including the submissions on costs as agreed and failing agreement within 28 days of the date of this order as assessed under Part 4.3, Div 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).
  2. The costs agreed or assessed under Order 1 of these orders shall be payable within 14 days of agreement or assessment.

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

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Decision last updated: 23 July 2015