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

Depicting gay men as a threat to children may be the single most potent weapon for stoking public fears about homosexuality

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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.


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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

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: 23 July 2015

FRED NILE: “ GAY RIGHTS ACTIVIST GARRY BURNS IS PERSECUTING A MAJOR IN THE ARMY”

19 June 2015
On last night’s Q & A program Reverend Fred Nile accused Anti-Discrimination Campaigner and openly homosexual man Garry Burns of persecuting a major in the army.
Mr.Burns has taken legal action under the Anti-Discrimination Act 1977 against Anti-Islam , Anti- Homosexual Catholic bigot Bernard William Gaynor for alleged breaches of the Anti-Vilification Provisions.
Garry Burns said , “ The Fred Nile soufflé went “ poof ” 40 years ago. His 40’s view is irrelevant in 2015.Everything and everybody has a “use by” date. Even the milk in Fred’s refrigerator has a “use by” date.  I’m not persecuting anyone. I’m just acting on behalf of the gay community and the protection of our rights not to be publicly ridiculed by those in the community who use religion as a legitimate means to incite hatred against us ”.
ENDS

LATROBE CITY COUNCILLOR CHRISTINE SINDT TO FACE VILIFICATION COMPLAINT

MEDIA RELEASE

FOR IMMEDIATE RELEASE
18 June 2015
On the 11 June 2015 Latrobe City Councillor Christine Sindt published the below statement on Facebook.
“ Same-Sex marriage “ is an oxymoron. Marriage is defined as a union between a man and a woman. Men and women are different sexes, so how can you have “same sex marriage” ? I wonder what Mr.Chester’s wife thinks about this ? There have been some amazing scandals in British Parliament involving young boys and Parliamentarians”.
NSW Anti-Discrimination Campaigner Garry Burns has taken the action against Ms.Sindt under the Anti-Discrimination Act 1977 ( NSW ) alleging that statement is unlawful because it has a capacity or effect of inciting hatred towards or serious contempt or serious ridicule of homosexual men on the ground of their homosexuality and that act is unlawful.
Mr.Burns successfully sued radio broadcaster John Laws over his “ on air “ rant with stable mate Steve Price in relation to a discussion that homosexual males should not be seen on live television.
Mr.Burns successfully sued Katter Australian Party candidate Tess Corbett over her statement’s linking homosexuality to pedophilia.
Ms.Corbett ran for the Federal seat of Wannon in the 2013 election.
“ For highly distressing reasons , the Australian public at the present day is being made particularly aware of the serious long lasting psychological damage suffered by victims of pedophilia. At any time and especially at this time , and pronouncement that “brackets” ….homosexual people with pedophiles is capable of ….urging ( people) to treat homosexuals as deserving to be hated or to be regarded with serious contempt. Ms.Corbett claims … do not merely offend or insult: they incite these negative reactions”,  said Judicial Member Chesterman in his judgement.
 Mr.Burns said , “ What is it with these incongruous imbeciles in Victoria like Corbett and Sindt. Don’t they realise it’s 2015 and the camp Hollywood legend Miss.Bette Davis is no longer strutting across our once 50’s black and white television set chain smoking. All politicians before entering public life should go back to school and do a course on diversity”.
ENDS
Garry Burns
02-9363-0372
0407-910-309
Cr Christine Sindt
0404-893-455

GAY ACTIVIST CALLS FOR OPEN DEBATE WITH COTTON MOUTH SENATORS, LEYONHJELM & BERNARDI

GAY ACTIVIST CALLS FOR OPEN DEBATE WITH COTTON MOUTH SENATORS, LEYONHJELM & BERNARDI OVER THEIR CALL FOR RACE HATE LAW CHANGES IN AUSTRALIA
18 January 2015
PERNICIOUS cotton mouthed NSW and SA senator’s David Leyonhjelm and Corey Bernardi want to co – sponsor a bill to make it acceptable to upset , insult , humiliate people on the limp wrist grounds of “ fundamental freedoms”.
“ The repeal of 18C will be used by bigots like Leyonhjelm and Bernardi to “ incite hatred towards , serious contempt for, or severe ridicule of “ Muslim Australians and that approach will do little to promote a message of tolerance and understanding. Australian in 2015 must be a tolerant place”, said Mr.Burns.
Anti-Discrimination Campaigner and gay activist Mr.Burns calls for an open debate with Leyonhjelm and Bernardi on how repealing 18 C of the Racial Discrimination Act would assist in the promoting of social harmony in Australia with our Muslim community.
Mr.Burns said : “ Leyonhjelm calls for Australians to carry guns and Bernardi is a well known Catholic bigot who equates homosexuality to bestiality. These two misfits are like a couple of manic crabs in a bucket : crawling all over the place and getting no where because their Australia is reminiscent of Germany in 1933 and not our Australia of 2015.
Senator Leyonhjelm has confirmed he sent a pejorative email on his tax payer funded email account to Mr.Burns telling him “ to go f — yourself.
Mr.Burns said : “ There are people in our Australian Parliament like Leyonhjelm and Bernardi who are using the tragedy of the Martin Place siege and the Paris killings to re agitate 18C of the Racial Discrimination Act to deliberately attack and vilify Muslim Australians”.
I’d like to remind this un-Australian pair ;
“ It is not the resented who suffer ; they are usually unaware of your resentment. It is the resentor who does the suffering in the end”.
 
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