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

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

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

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

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

NSW Crest Civil and Administrative TribunalNSW Crest
New South Wales

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

Hearing dates:
6 July, 14 October 2016

Date of orders:
31 October 2016

Decision date:
31 October 2016

Jurisdiction:
Administrative and Equal Opportunity Division

Before:
Marks ADCJ, Principal Member

Decision:
Application dismissed

Catchwords:

Charge of contempt – application by legal practitioner for finding of contempt against party to proceedings -principles applying to contempt in the face of the Tribunal-held contempt not established-application dismissed

Legislation Cited:

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

Category:

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

Solicitors:
Robert Balzola and Associates (Applicant)
Garry Burns (Respondent in person)
File Number(s):
1410717,1410218,1410195
REASONS FOR DECISION

Background to the proceedings

By application brought in this Tribunal, the applicant Robert Balzola seeks a finding pursuant to section 73 of the Civil and Administrative Tribunal Act, 2013 (“the Act”) that the respondent, Garry Burns be found in contempt of this Tribunal.

The application arose out of proceedings before this Tribunal between the respondent as applicant and John Sunol as respondent, in which the applicant in these proceedings had represented Mr Sunol as his solicitor. I shall henceforth refer to those proceedings as “the vilification complaints”. The vilification complaints proceedings were comprised of three complaints initiated by Mr Burns against Mr Sunol alleging, inter alia, homosexual vilification and inappropriate conduct with children by reason of material published on a website operated by Mr Sunol. Those complaints had been referred to the Tribunal by the President of the Anti-Discrimination Board for determination as to whether the material published on the Internet website was unlawful under provisions of the Anti-Discrimination Act, 1977 (NSW). Mr Sunol sought the summary dismissal of each of the complaints under section 102 of the Act on certain grounds.

The applications for summary dismissal came on for hearing before a Principal Member of this Tribunal, A. Britton, on 1 June 2015. The applications were dismissed by order made on 25 August 2015 and on that date the Principal Member published comprehensive reasons for her decision, which are reported at Burns v Sunol [2015] NSWCATAD 178. The reasons for decision consider the relevant principles upon which a complaint might be summarily dismissed, the powers of the President of the Anti-Discrimination Board, the relevant provisions of the Anti-Discrimination Act and the state of the evidentiary material before the Principal Member. The decision involves an application of the relevant legislation and principles to that evidentiary material. The only evidentiary material before the Principal Member consisted of certain documents filed in connection with the proceedings and in connection with the application for summary dismissal, and it appears that no oral evidence was given.

The applicant in these proceedings is noted in the coversheet of the reasons for decision of the vilification proceedings as being the solicitor representing the respondent Mr Sunol. In the course of giving evidence in these proceedings, the applicant said that he appeared with Mr Sunol during the course of the hearing before the Principal Member, assisted his client and, on occasions, assisted the Tribunal directly when asked to do so.

The charge of contempt

These proceedings first came on for hearing before me on 6 July 2016. At that stage, the Application filed by the applicant did not contain any details of the contempt alleged against the respondent.

It is a fundamental concern that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton (1953) 90 CLR 573 at 579-580 the High Court of Australia said:

[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs [1941] VicLawRp 16; [1941] VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott [1909] AC 312 at 315.

Coward v Stapleton was applied in Australian Building Construction Employees’ and Builders Labourers’ Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine [1979] AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.

I indicated to the applicant that I was not prepared to conduct the proceedings unless a charge of contempt and particulars thereof had been formulated by him, and the respondent had been given an appropriate opportunity to consider the charge and particulars, and to respond. Counsel for the applicant, who had very recently been briefed in the matter concurred with this approach and applied for an adjournment. The respondent agreed that the matter should be adjourned for this purpose, and because of such agreement, the adjournment application was granted with orders being made for the filing of evidentiary material and submissions by both parties.

When the matter came on for hearing again on 14 October 2016, the applicant had formulated a charge of contempt. The document refers to the applicant in these proceedings as being the respondent in the proceedings before the Principal Member; and the respondent in these proceedings as being the applicant. This is, of course, incorrect because Mr Sunol is not a party to these proceedings, Mr Balzola is clearly the applicant bringing the charge on his own behalf against the respondent, and Mr Burns is clearly the respondent to the charge. The proceedings were conducted before me on the basis that the incorrect appellations utilised in the form of the charge were disregarded. In order to make sense of the form of the charge for the purpose of reproduction in these reasons for decision, I have inserted the correct reference to the parties. Accordingly, the charge as formulated by the applicant is to be read in the following terms:

The applicant charges the respondent that the respondent is in contempt committed in the face of the Tribunal, in that during the course of the (vilification complaints) proceedings, the respondent by his letter of the 18 August 2015, addressed to the Registrar of the Tribunal, sought to interfere or intended to interfere with the course of justice, by: –

(1) Making insulting and offensive comments, such comments being untrue, false and malicious as to the character and credit of the respondent’s solicitor, Mr Robert Balzola, with the intention of urging upon the Tribunal that it should reject the respondent’s defence in the proceedings on the basis of the respondent’s solicitor was not a fit and proper person to represent the respondent before the Tribunal, the solicitor being a racist, a person about to being (sic) struck off the roll of solicitors and a person who is about to be disciplined by the Tribunal for pernicious behaviour which verges on criminal behaviour; and/or

(2) That the letter sought to discredit and impugn Mr Balzola’s character with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal and thereby deter the Tribunal from making a fair and just assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf the respondent by Mr Balzola cannot be trusted or believed; and/or

(3) The respondent had exacerbated his alleged breach of the Anti-Discrimination Act by retaining Mr Balzola.

Particulars

The applicant relies upon the letter from the respondent to the Registrar of the Tribunal dated 18 August, 2015 with reference to File Nos 1410717, 1410281 and 1410195 and, in particular, the applicant relies on the following passages set out in the last three paragraphs of the said letter: –

(1) “I can confirm that Anti-Islam Solicitor Robert Remo Balzola is under investigation by the Legal Services Commissioner in relation to these kinds of activities”;

(2) “…it’s only a matter of time before Mr Balzola loses his licence to operate as a Solicitor”;

(3) ”Mr Balzola will be struck off the Solicitor’s register within some time in the near future”; and

(4) “The good news will be that Robert Balzola will have to come before a Judicial Member of NCAT because of his own pernicious behaviour which I allege verges on criminal.”

The evidentiary background

In order to fully consider the letter which is referred to in the Charge and in the Particulars, it is first necessary to refer to a letter dated 17 August 2015 which had been forwarded by Mr Sunol to the Registrar of this Tribunal with respect to the three vilification complaints matters. The letter acknowledged receipt of three CDs which Mr Sunol said “purported to be the full recordings of the public hearing on July 15, 2015.” The letter complained that the CDs did not contain a record of certain matters which had arisen during the course of the hearing before the Principal Member. Specifically, the letter alleged that “…an important time interval of the public hearing has been censored or deliberately removed from the duplicate recordings I paid for…”. The letter then went on to specify what was alleged to have been omitted from the recording. In general terms, this material was said to cover an incident involving Mr Burns asserting that he had behaved in an inappropriate manner. It was alleged that the Principal Member asked Mr Sunol and Mr Balzola to leave the hearing room “while she engaged in private conversation to persuade (Mr Burns) to calm down and complete the hearing.” The letter stated that Mr Sunol was concerned that untrue information might have been conveyed to the Principal Member in his absence. The Registrar was asked to investigate the matter and to provide a recording of the proceedings without any deletions.

The letter from Mr Burns to the Registrar dated 18 August 2015, the contents of which are at the heart of the Charge in these proceedings, was expressed to be written in response to the letter from Mr Sunol of the previous day. The letter denied that he had participated in any conversation of a private manner with the Principal Member and that he had been left alone with her at any time. He complained that Mr Sunol was a liar and that his letter was “designed by his lawyer through him for the purpose of the Appeal claiming “bias once the complaint against Sunol is substantiated.” In referring to Mr Balzola as the solicitor for Mr Sunol, Mr Burns described him as being an “Anti-Islam Solicitor”. The letter then concluded with the three references to Mr Balzola which are set out in the Charge particulars.

The Tribunal records indicate that there was, in fact, no hearing conducted on 15 July as asserted in the letter from Mr Sunol of 17 August, and that the hearing date was 1 June 2015. The letter of 17 August preceded publication of the reasons for decision by eight days.

The respondent conceded during the course of the hearing that he was the author of the letter of 18 August 2015, and I find that he communicated it to the Registrar on or about that date.

Counsel for the applicant asserted that I should infer that the letters of 17 and 18 August were brought to the attention of the Principal Member by the Registrar. I am not prepared to make any such inference. The letter of 17 August was directed solely to the contents of a recording of the proceedings, and as to whether anything had been omitted from it. It was not addressed to the Principal Member, and involves a matter solely within the province of the Court Reporting Service. There is nothing contained within the reasons for decision which would give any hint that this was a matter which had been brought to the attention of the Principal Member some eight days before the publication of her reasons, and more than two months after the hearing. Applying the relevant standard of proof, which I shall shortly discuss, no such inference can be drawn.

I admitted into evidence an affidavit sworn by the applicant dated 31 May 2016 for the purpose of describing the context in which the alleged contemptuous material was created by the respondent. It annexes a number of extracts from the respondent’s website entitled “Garry Burns Gay Anti-Discrimination Activist” dating back to September 2014. These extracts include criticism of the applicant for representing certain clients opposing the construction of a mosque in the ACT and Bendigo, labelling him as “Anti-Islam Solicitor Robert Balzola”, urging persons not to use his services, and referring to a number of matters heard in this Tribunal in which the applicant acted as solicitor for a party opposing the respondent declaring that “Anti-Islam Solicitor Robert Balzola loses another encounter.” Another annexure is a copy of an email from the respondent to the Islamic Council of NSW which refers to migration agency services provided by the applicant, and informing the Council that the applicant “uses Islam for the pre-dominant purpose of inciting hatred against Muslim Australians.” The annexures also contain references to media releases issued by the respondent. Included is an email from the respondent to the Sydney Morning Herald dated 27 September 2014 in which he refers to anti-discrimination proceedings taken by him against another person represented by the applicant, again referring to the applicant as an “Anti–Islam campaigner”. There are other documents in similar vein which I shall not describe.

By emails dated 14 October 2014 which appear to be addressed to a number of NSW parliamentarians and to the Commissioner of Police, the respondent refers to the fact that the applicant is the solicitor for a named client in connection with anti-discrimination proceedings brought by the respondent. The email contains a number of scurrilous, irrelevant and prima facie defamatory references to the applicant which I shall not dignify by repeating them.

By email from the respondent to the applicant dated 22 October 2014, the respondent referred to three named persons whom the applicant was representing in certain matters involving the respondent. He asserted that he would be successful in the proceedings, referred to the clients of the applicant in disparaging terms, and described the applicant in equally disparaging terms. The email finished by referring to men from two named European countries, with whom the respondent had apparently slept, in disparaging terms, and the respondent described himself as “Anti-Discrimination Campaigner and Public Interest Litigant.” The applicant’s affidavit annexes copies of other email communications in the same vein. I should add that the respondent copied the applicant into all these emails.

It is clear from this documentation that there is a history of profound animosity directed by the respondent to the applicant.

For completeness, and although they were not the subject of any controversy during the course of the hearing, I note the following:

The respondent willingly personally appeared at each of the two hearings before me.

The respondent was at all times fully informed of the contents of the charge and particulars ultimately brought against him and participated in the hearings representing himself.

The jurisdiction and powers of the Tribunal in relation to contempt

This Tribunal is a statutory tribunal, and its jurisdiction and powers are circumscribed by the provisions of the Act. Relevantly, they are to be found in section 73 which is in the following terms:

73 Contempt of Tribunal

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

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

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

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

(4) For the purposes of this section:

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

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

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

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

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

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

Accordingly, the stated provisions of the District Court Act are taken to apply to the jurisdiction and powers of the Tribunal to deal with contempt, modified as set out in section 73. Those provisions are in the following terms:

199 Contempt

(1) In this section,

“contemnor” means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.

(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:

(a) by oral order direct that the contemnor be brought before the Court, or

(b) issue a warrant for the arrest of the contemnor.

(3) Where the contemnor is brought before the Court, the Court shall:

(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,

(b) require the contemnor to make his or her defence to the charge,

(c) after hearing the contemnor, determine the matter of the charge, and

(d) make an order for the punishment or discharge of the contemnor.

(4) The Court may, pending disposal of the charge:

(a) direct that the contemnor be kept in such custody as the Court may determine, or

(b) direct that the contemnor be released,

and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.

(5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.

(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.

(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days.

(8) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

200 Fines under sec 199

(1) A fine imposed under section 199 is payable to the registrar for such proclaimed place as the Court directs.

(2) Payment of a fine imposed under section 199 may, if the Court so orders, be enforced, subject to the civil or criminal procedure rules, as if the amount of the fine were a judgment debt, the person upon whom the fine was imposed were a judgment debtor and the registrar were a judgment creditor.

(3) The amount of any fine paid to or recovered by the registrar under this section shall be paid to the Consolidated Fund.

202 Stay of contempt proceedings

(1) At any stage of any proceedings under section 199 or 200, the Court may, on terms, order that the proceedings be stayed.

(2) Where the Court orders that proceedings be stayed under subsection (1) and an appeal is brought under section 201, the stay of proceedings shall continue until the appeal is disposed of or until the Court or the Supreme Court otherwise orders.

(3) Except as provided in this section or as directed by the Supreme Court, an appeal under section 201 shall not operate as a stay of proceedings.

Principles applying to contempt proceedings

Whether the respondent is guilty of contempt of the Tribunal is to be determined by applying the accepted common law principles as established by relevant authorities in this area. The charge brought against the respondent was that he was guilty of contempt in the face of the Tribunal. It is hopefully not necessary to cite authority that such asserted contempt is to be treated as criminal contempt, incorporating the necessity to establish proof to the criminal standard. Such contempt may be contrasted with civil contempt which occurs, by way of example, in circumstances where a party to proceedings has refused to comply with a court order.

I have not been referred to any authority which deals with the particular circumstances of these proceedings involving, as they do, an attack on the integrity of a legal practitioner representing a party. Accordingly, my review of relevant authorities will need to examine the general principles applying to contempt in greater detail than might otherwise be required.

I had occasion to deal with the relevant principles applying to criminal contempt when sitting as a member of a Full Bench of the Industrial Relations Commission of New South Wales in Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW) [2003] NSW IRComm 387. Rather than attempting to paraphrase my summary of the relevant principles in those proceedings, and the discussion of a number of important authorities, I have set out an extract hereunder, with modifications necessitated by the particular circumstances of these proceedings. The extract contains a detailed examination of some aspects of the legal principles dealing with contempt, and I shall refer to many of these detailed matters in determining the outcome of these proceedings.

31 ……… Criminal contempt involves “an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” (per Lord Diplock in the House of Lords in Attorney-General v Leveller Magazine [1979] AC 440 at 449.) The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings “or by deterring other people from having recourse to courts of justice in the future for the vindication of their lawful rights or for the enforcement of the criminal law.” (per Lord Diplock at 449). There are varying forms of conduct which have been said to constitute contempt. That which has been most commonly dealt with in decided cases has been the publication of material either before or during the course of actual court proceedings. Some of the conduct complained of has been said to be directed to the parties to the proceedings themselves; other conduct has been said to be directed to the court (including jurors) or the public generally. Another major category of contempt is the adverse treatment of witnesses either before or after the trial.

32 A general statement of principle which is useful in understanding the background against which these proceedings are being conducted is contained within observations made by Lord Diplock in the House of Lords in Attorney-General v Times Newspapers [1974] AC 273, commencing at 307. His Lordship said:

My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. ‘Contempt of court’ is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a ‘civil contempt.’ The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.

All other contempts of course are classified as ‘criminal contempts,’ whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences. Such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large.

…..

In the nature of things the applicant would be primarily concerned with the effect of the alleged contempt upon his own interests in that litigation, and the argument addressed to the court would be mainly directed to this. This is reflected in the judgments in the numerous cases on contempt of court which appear in the reports. With relatively few exceptions, they concentrate upon the particular prejudice likely to be caused to a party in that litigation itself by the particular conduct that is the subject of complaint. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist. This is not surprising since until the Administration of Justice Act 1969 there was no appeal in cases of criminal contempt. The decisions are those of courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing.

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. (at 307-9)

33 In considering matters of this kind the courts have, however, been careful to balance the necessity to preserve the attainment of justice against fundamental rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them. This requirement to balance what may be competing, and indeed, conflicting interests all of which are designed to enhance the public interest, has resulted in a necessarily cautious approach to be taken to a determination of whether conduct constitutes criminal contempt. This matter was summarised by Lord Morris in Attorney-General v Times Newspapers (previously referred to) commencing at 302 in the following manner:

My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well- disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a design to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.

Various types of behaviour which in the past have been brought to the notice of courts as involving ‘contempt’ have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications. Nevertheless the cases illustrate certain general principles as to what is or is not permissible and courts have as a rule found no difficulty in deciding whether a complaint is or is not well founded. Certain examples may be given. Grossly irregular behaviour in court could never be tolerated. Nor could publications which would prejudice a fair trial. Thus if someone was awaiting trial on a criminal charge much harm could be done by the publication of matter which might influence potential jurors to the prejudice of the accused. There might be steps taken wrongfully to influence witnesses – as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any pending litigation and the stage it had reached. A court would not be likely to listen to a complaint that lacked substance. Indeed when the Divisional Court referred to the question ([1973] Q.B. 710, 725) whether words complained of would ‘create a serious risk that the course of justice may be interfered with’ or when Lord Denning M.R, at p. 739, said that ‘there must appear to be “a real and substantial danger of prejudice” to the trial of the case or to the settlement of it’ useful reminders were given of the fact that ‘contempt’ is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find ‘contempt’ where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail.(at 302-3).

…..

35 There are a number of other important English authorities which have discussed contempt as well as several important Australian authorities, including decisions of the High Court of Australia. However, the necessity to embark upon a detailed analysis and consideration of the authorities has been obviated because that task has recently been discharged by Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22. Beazley JA agreed with the reasoning of Mason P. Powell JA delivered a separate judgment.

36 The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour’s analysis and consideration of the relevant authorities and his Honour’s conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are:

  1. Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.
  2. It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings…..

  3. There is “a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material.” Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for “interference in the litigant’s freedom to conduct the litigation as he or she chooses.” Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere.

  4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of “the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of ‘ordinary’ fortitude who might be capable of influence by similar pressure applied in similar circumstances.” (Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]:

These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.

In the same case, in agreeing with the Chief Justice, Ipp AJA said at par [54]:

[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.

  1. In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: “Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper….” (at 30).

…..

  1. In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be “special defences such as fair comment and justification” which are available.
  • In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at p 294) is apposite:

  • The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

    1. The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification ….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like.
  • The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution. So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it. (at 42)

  • ……

    38 In view of the fact that the majority of the charges against the respondent are framed by reference to the bringing to bear of unreasonable pressure upon the applicants in the substantive proceeding in the way particularised, it is appropriate to refer to decided cases which have discussed the nature of the pressure required to constitute contempt.

    39 In John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471, Mahoney JA stated that a superior court had the power and the duty to ensure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction, citing Viscount Haldane LC in Scott v Scott [1913] AC 417 at 437 for the proposition that it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. Mahoney JA went on to refer to an attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstance, be punished as contempt, citing the cases referred to in Fraser v The Queen [1984] 3 NSWLR 212.

    …..

    41 As already noted above, Mason P in Harkianakis conducted a general review of the law in relation to contempt and referred to the need to demonstrate, to the criminal standard, that a contempt had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case”. At 28 et seq Mason P continued:

    The cases have recognised a category of criminal contempt in which improper pressure is placed on the party to court proceedings through the public dissemination of material … the gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wished to seek curial vindication of their rights. … the gravamen of this particular type of contempt is the potential interference of the litigant’s freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action or a defence after setting it in motion. The latter option may be exercised up until the time the court delivers judgment. The modern pre-occupation with ‘alternative dispute resolution (ADR)’ recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the Public interest for several obvious reasons. It follows that (improper): ‘… interference with negotiation towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense (Sunday Times case at 317), per Lord Simon (see Attorney-General v Times Newspapers Ltd [1974] AC 273).

    42 Later, at 32, his Honour stated:

    In an adversary system, the law’s concern is to protect from improper interference the litigant’s freedom to choose whether or not to initiate, continue or discontinue legal proceedings. It is irrelevant that the principal proceeding may be doomed to success or failure.

    43 In Re William Thomas Shipping Co Pty Ltd [1930] 2 Ch 368 Maugham J considered the effect of a published interview criticising the application for the appointment of a receiver in which a director expressed the view that the appointment had smashed the goodwill and organisation of a business in a day, and no one in shipping circles could understand the line of conduct. At 376, his Honour stated:

    Dealing as I am here, with a case very different from that which came before the court in The Queen v Payne [1896] 1 QB 577, I must express my opinion that the jurisdiction of the court is not confined to cases where the order of the court or the future orders of the court are likely to be directly affected in some way. If it was so confined, I doubt whether there would be any limit to what a litigant, or some other person, might say pending the hearing of an action in the Chancery Division, unless, indeed, it could be shown that possible witnesses in the case were being interfered with. I think that to publish injurious misrepresentations directed against the party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the cause of justice because it may, in the case of the plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he would otherwise not come to, for like reasons. I think that consideration has peculiar weight in the case of a representative action such as this, being an action of a kind which is generally brought in the Chancery Division.

    44 In that case, his Honour had particular concern for a plaintiff with a small stake who, by pressure of adverse comment about his proceedings, may be improperly persuaded to take action in the running or settlement of the case which was not in the interests of the other debenture holders whom he was representing.

    45 In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354, Burchett J, at 362, stated:

    ‘Improper pressure’ or ‘improper interference’, used in some of these authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. How much this is a problem for the law of contempt as a practical matter may be a subject for debate. As I understand the authorities, some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the intention of so interfering whether or not it would otherwise be an improper or a proper action, that tendency and that intent may be enough to establish a contempt of court. But as Mason P pointed out in Harkianakis at 28, intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown, the question whether any pressure was or was not improper may be the crucial issue. Thus, in Wilshire-Smith v Voltino Bros Pty Ltd [1993] FCA 138; (1993) 41 FCR 496, a case in which (as appears at 506) there was no intention to interfere with the due administration of justice, but what was done had that tendency, O’Loughlin J said (at 505):

    The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate.

    46 In Wilshire-Smith, O’Loughlin J, at 505, in dealing with the notion of pressure said:

    In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain would ever establish the existence of a risk to inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.

    There is one further decided case to which reference should be made. It is a decision of Hoeben J (as his Honour then was) in the Supreme Court of NSW in Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389. The matter came before Hoeben J by summons filed by the Prothonotary seeking declarations in the following terms:

    1. A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury “Regrettably, the next generation will suffer for your ignorance”, which statement had a tendency to interfere with the administration of justice.
  • A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely “Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales” which statement had a tendency to interfere with the administration of justice.

  • The particulars of contempt alleged in the summons were as follows:

    1. On 2 March 2006, at the District Court at Newcastle, the Crown presented an indictment against the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, between 3 December 2004 and 27 January 2005, at Salisbury in the State of New South Wales (ss 23(2)(a), 33(3)(b) Drugs Misuse and Trafficking Act 1985) (the charge).
  • The defendant pleaded not guilty to the charge, a jury was empanelled and the trial proceeded on 2 March 2006, 3 March 2006, 6 March 2006 and 8 March 2006.

  • The defendant represented himself throughout the course of the trial.

  • On 8 March 2006, the jury returned a verdict of guilty in relation to the charge.

  • After the trial judge had discharged the jury, and whilst the jury were in the process of leaving the court, the defendant said to the jury, “Regrettably, the next generation will suffer for your ignorance” (the first statement).

  • The first statement visibly upset some of the jurors.

  • After leaving the court, the defendant participated in an interview with the local television station, NBN Channel 3 (the interview).

  • In the course of the interview, the defendant made the following statement (the second statement):

  • “Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales.”

    1. At the time of the interview it was likely that the interview would be broadcast on the NBN television news that evening.
  • The conduct of the defendant in making the first statement and the second statement had a tendency as a matter of practical reality to interfere with the administration of justice in that:

  • (i) the first statement, made in the presence of the jurors, was abusive and had a tendency to deter those jurors in relation to their participation in future trials;

    (ii) the first statement was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;

    (iii) the second statement was made to the media, and was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;

    (iv) the second statement had a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in the proceedings.”

    In the course of his judgment, Hoeben J said:

    30 It is trite law that proof of an intention to interfere in the administration of justice is not an ingredient of the charge. This question was comprehensively analysed by the Court of Appeal in Attorney General of NSW v Dean (1990) 20 NSWLR 650. At 655E the court said:

    “The opponent repeatedly laid stress upon the absence of any intention to interfere in the administration of justice. However, it is clear that although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge.”

    At 656A the Court said:

    “The matter of overriding importance is to prevent interference with the proper course of trials; that interference is just as real and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear. It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused.

    The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the court’s decision as to penalty…

    The opponent’s ignorance of the law of contempt cannot excuse him from its obligation. We have concluded that when the opponent made the three statements complained of he did so with intention that they should be included in the material, upon the basis of which the media representatives would later make a decision to compose their program. In the circumstances in which the statements were made before cameras, microphones and other recording equipment and thirty journalists, it is completely unrealistic to suggest that the opponent should be treated as if he were having a private conversation. The whole point of the media interview, was the communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”

    31 In this case it is clear that the defendant intended to use the words which he said, although he did not have the specific intent of interfering with the administration of justice. I do not find, however, that the defendant’s statements, both in court and to the journalists, were premeditated or planned.

    32 Because these are criminal proceedings, the standard of proof is beyond reasonable doubt. The test for contempt is whether the conduct in question had a tendency to interfere with the administration of justice. For the offence to be made out, I have to be satisfied beyond reasonable doubt that either or both the first statement and the second statement had as a matter of practical reality an objective tendency to interfere with the administration of justice. The test is an objective one, so that the person to whom the conduct or words were directed does not necessarily have to be intimidated or deterred. All that is necessary is that the requisite tendency is present.

    33 The cases recognise that it is a contempt of court to threaten or take reprisals against judges, witnesses and legal practitioners involved in the judicial process in relation to particular legal proceedings. As the extract from Re Johnson makes clear, that principle applies equally to jurors. Action taken by way of reprisal may constitute a contempt whether or not proceedings remain pending because such conduct may interfere with the administration of justice as a continuing process by discouraging or influencing participation of such persons in future legal proceedings.

    Observations of Lord Denning MR at 719 and of Pearson LJ at 728 were to similar effect.

    36 I am satisfied beyond reasonable doubt that a contempt of court has been established in relation to both the first statement and the second statement.

    37 In relation to the first statement, … as the trial judge told the jury in this case when they were discharged, the jury plays a critical role in the administration of justice in this State. It performs an onerous and difficult task carrying with it great responsibility. It is therefore important to ensure that the integrity of persons who are empanelled to sit on a jury and persons who may be so empanelled in the future is not called into question or subjected to abuse. Conduct which has the tendency to deter jurors from serving again and to deter potential jurors from serving at all has as a matter of practical reality an objective tendency to interfere with the administration of justice.

    38 The first statement by the defendant was clearly addressed to the jury. Viewed objectively, it constituted a form of abuse directed at the jury by way of reprisal for their verdict. It had the necessary tendency to influence and deter those jurors and jurors generally from participating in future trials and as such it amounted to a contempt of court.

    39 In respect of the second statement this was made to a group of journalists, accompanied by television cameramen, with the clear intention that the remarks be promulgated as widely as possible. In that regard the passages from Attorney General for NSW v Dean previously quoted are apposite – “the whole point of the media interview was a communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”

    40 In the second statement the defendant’s characterisation of the jurors as sheep constituted a clear and intentional attack upon their independence, integrity and impartiality. The second statement can also be correctly characterised as a form of abuse and directed at the jury by way of reprisal for their reaching a guilty verdict. The clear message for potential jurors who might have seen the report on the television news was that serving on a jury was a thankless task for which abuse and public humiliation were likely consequences. The second statement had as a matter of practical reality a real tendency to undermine public confidence in the administration of justice by suggesting that the jurors had not properly discharged their duties in the proceedings.

    41 It follows that each of the first and second statements constituted a separate and clear contempt of court. I make declarations in accordance with paragraphs 1 and 2 of the summons. The defendant is convicted of the two counts of contempt which have been brought against him and as are particularised in the summons.

    I add for completeness that his Honour imposed a suspended prison sentence on the defendant of 12 months’ imprisonment.

    The applicant’s submissions

    In written submissions, counsel for the applicant described the allegations made by the respondent as contained in the letter to the Registrar as “false, untrue and malicious.” In oral submissions, he also described them as being defamatory. Counsel ascribed two reasons why the respondent had made these allegations. He said that firstly, by making these “insulting, offensive and untrue malicious statements”, the respondent had sought to urge the Tribunal to reject his client’s defence to the complaint by reason of the impugned character and credit of his client’s “solicitor of choice.” The second reason was that the letter “sought to discredit and insult Mr Balzola with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal. The letter seeks (to) deter the Tribunal from making a fair and unbiased assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf of (Mr Sunol) cannot be trusted or believed and further, (Mr Sunol) has exacerbated his breach (of the anti-discrimination legislation) by retaining the applicant.”

    The submissions emphasised the duty of legal practitioners appearing before a court, and also a tribunal such as this Tribunal, to act with integrity, candour and honesty. It was said that by falsely attacking the applicant’s character and reputation as a solicitor the respondent had sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was interfering with the administration and course of justice.

    Consideration

    It is first necessary to consider the contents of the letter of 18 August 2015 which constitute the particulars of the Charge. It contains allegations that the applicant conducted himself in a manner which is antagonistic to those practising Islam, that the applicant was under investigation by the Legal Services Commissioner in relation to his anti-Islam activities, that he would shortly be struck off the roll of Solicitors and that he had acted in a pernicious manner which “verges on criminal.”

    As I have previously indicated, the respondent conceded that he was the author of the letter and the author of the material contained within it. Such evidence as has been led in these proceedings is to the effect that the only investigation about the applicant conducted by any authority concerning the applicant’s practise as a solicitor was a result of a complaint brought against him by the respondent, which was dismissed. There is therefore no demonstrated substance to the assertion that the applicant was under investigation or was in any danger of having his continued right to practice compromised. Furthermore, the only reference to any activities undertaken by the applicant with respect to the allegation that in some way he is “Anti-Islam” is to the fact that he represented two community groups opposing the construction of a mosque in two regional areas.

    In these circumstances, I am persuaded beyond a reasonable doubt that the statements made by the respondent as contained in the particulars of the Charge were untrue and without foundation. Furthermore, I am persuaded beyond a reasonable doubt that the comments in the statement were malicious, insulting and offensive.

    By reference to the authorities which I have set out above in some detail, it may be concluded, as I do, that:

    The statements made by the respondent cannot be justified in any sense by reference to any “rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them.” (See the extract from the judgment of Lord Morris in Attorney-Gen v Times Newspapers previously referred to).

    These statements may fairly be described as “conduct which was calculated so to abuse or pillory (a solicitor representing) a party to litigation or to subject him to such obloquy as to shame or to dissuade him from” representing that party (also based on the judgment of Lord Morris).

    Nor can the statements made be justified in any sense by reference to any permitted “discussion of public affairs and the denunciation of public abuses, actual or supposed”.

    The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like. These are matters which apply to the description of the applicant used by the respondent in the letter of 18 August 2015.

    The attack on the applicant’s character and reputation initiated by the respondent concerned his representation of his client in proceedings before this Tribunal. Once a legal practitioner has been granted a right to represent his or her client, any undue and irrelevant attack on the character of the practitioner in his or her capacity as representing a client constitutes an attack on the processes of the Tribunal, and in appropriate circumstances, may constitute contempt. Legal practitioners are obliged to protect their reputations so as to be able to continue to attract and represent clients.

    I conclude that, prima facie, in all the circumstances of these proceedings that the statements which were directed to the applicant who was the solicitor for Mr Sunol in the vilification complaints proceedings are capable of constituting contempt. I accept and agree with the submissions of the applicant that legal practitioners are required to act with integrity, honesty and candour in representing parties before this Tribunal. By falsely attacking the applicant’s character and reputation as a solicitor the respondent has sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was, prima facie, interfering with the administration and course of justice. Furthermore, the conduct of the respondent clearly was directed to the applicant personally in his capacity as solicitor for Mr Sunol. Legal practitioners are generally required to afford representation to persons who seek their services. As such, legal practitioners are entitled to afford representation to whomever they please, and the administration of justice and the management of our legal system is dependent upon these matters of fundamental concern. Any conduct which has the effect, or the tendency to dissuade legal practitioners from performing this valuable public service will, in appropriate circumstances, expose the proponent of such conduct to the risk of prosecution for contempt.

    As the authorities to which I have referred to make clear, there is, however, one further fundamental element which must be established in order to conclude that the respondent is guilty of the contempt the subject of the Charge and particulars. In all cases it is necessary for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings. This is usually discharged by demonstrating that the contemptible material complained of has been appropriately and relevantly published. It is the publication of the inappropriate material which creates the prejudice or impediment to the administration of justice. Furthermore, the authorities to which I have referred make clear that there must be a public dissemination of material, which has a tendency to deter both an individual litigant, in this case through his solicitor, and litigants similarly placed who wish to seek “curial vindication of their rights” so as to create a “potential interference of the litigant’s freedom to conduct litigation as he or she chooses.” (Per Mason P in Harkianakis, previously referred to).

    Publication was clearly demonstrated, by way of example, in Katelaris. The first statement was published to the jury, albeit they had already been discharged, and the second statement was published to the media.

    There is, however, no such publication in the circumstances of these proceedings. The particulars of the Charge are confined to the letter of 18 August 2015. That letter is addressed to the Registrar, and the substance of the letter is in reply to the assertion made by Mr Sunol that omissions of a fundamental kind had been made from CD recordings made available to him and a concern that something of an improper nature might have occurred in the course of the proceedings. The clearly offensive material concerning the applicant was added gratuitously at the end of the letter of 18 August 2015. No inference can be drawn, as I have previously concluded, to the requisite criminal standard, that the person solely charged with determining the proceedings, namely the Principal Member, was informed about or was aware of the contents of that letter and the offensive material contained within it. Nor can it be inferred that the letter came to the attention of anyone other than Registry staff. On this basis, it cannot be concluded to the requisite standard that this limited publication of the offensive material would adversely impact on the administration of justice by the Tribunal.

    Arguably, if the Charge and particulars had referred to material of the same offensive nature contained on the respondent’s website, and such material was capable of being linked to proceedings before this Tribunal with which the applicant was concerned as solicitor for a party, contempt might be more readily found to have been committed. However, such is not the case in these proceedings and I conclude that the limited publication of the offensive material to the Registrar is not capable of constituting contempt in all the circumstances of these proceedings. There is insufficient evidence to conclude that there has been an unjustifiable interference with the relevant proceedings before the Tribunal for me to conclude that the applicant has established beyond reasonable doubt by means of the public dissemination of material which is obviously and clearly offensive.

    Nor has there been established to the requisite standard of proof that any of the three more general matters identified by Lord Diplock in Attorney-General v Times Newspapers have been established by reason of this limited publication. These are:

    The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

    Finally, I repeat that “… If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail. (Lord Morris in Attorney-General v Times Newspapers (previously referred to).

    For all these reasons I conclude that the application must be dismissed.

    The respondent did not seek any order for the payment of costs.

    Order

    The application is dismissed.

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

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

    Decision last updated: 31 October 2016

    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

    LA TROBE CITY COUNCIL’S INTOLERANCE PROBLEM CHRISTINE SINDT IS TO FINALLY FACE COURT IN NSW OVER THE ALLEGED VILIFICATION OF HOMOSEXUALS

    FOR IMMEDIATE RELEASE
    10 February 2016
    La Trobe City Council’s intolerance problem Councillor Christine Sindt is to finally face court in NSW over her alleged vilification of homosexual men and women and of Anti-Discrimination Campaigner Garry Burns over the publishing to her Facebook page statement’s that refer to Mr.Burns personally as “ gay child sex activist “ and that homosexuals want “ same-sex “ marriage so that they can have easy access to children to molest because homosexuals are to be viewed in the same category as paedophiles.
    Councillor Sindt posted a photo on her Facebook Page of herself at the Reclaim Australia Rally in Melbourne with a sign saying , “ I love bacon , not paedophilia “.
     
    “ Is this women a fit and proper person to represent to good people of La Trobe City via it’s Council when she conducts herself in public like this ? “ , asks Mr.Burns.
    On the 24 July 2015 the President of the NSW Anti-Discrimination Board ( ADB ) accepted a complaint from Anti-Discrimination Campaigner Garry Burns alleging the publishing of statement’s by Councillor Sindt to her Facebook page amounted to unlawful homosexuality vilification under the Anti Discrimination Act 1977 of Mr.Burns personally and homosexuals men and women in general.
    Councillor Christine Sindt has constantly delayed and not provided a defence for her alleged unlawful conduct and the President has finally referred Mr.Burns’ complaint against Councillor Sindt to the NSW Civil Administrative Tribunal ( NCAT ) for a public hearing.
    Councillor Sindt claims she’s represented by Anti-Islam Solicitor Robert Remo Balzola.
    Mr.Balzola is known for opposing the building of Mosques in both NSW and Victoria ( and has lost all cases ) and is commonly referred to in the media as a disrupter of “ social harmony ” in Australia over his alleged disdain for the religion of Islam.
    In an email exchange between Councillor Christine Sindt to La Trobe City Council Chief Executive Officer ( CEO ) Mr. Gary Van Driel on the 20 November 2015 said this ; ( sic )
    “ You are quite aware that Garry Burns has threatened the wife of current Prime Minister , Lucy Turnbull , and that he is under investigation by Morwell CIU for blackmail”.
    “ I have not been officially contacted by Morwell Police’s CIU for formal a interview in relation to the alleged threatening the wife of the Australian Prime Minister Mrs. TurnbullTurnbull or for the criminal act of blackmail ( which carries upon conviction a maximum of 15 years imprisonment ) . I will not be intimidated by the pernicious tactiics of Councillor Sindt to engage Victorian Police in attempt to frighten or discredit me from my public interest work’s message of promoting “ tolerance and understanding” for minority Australians  . I’d rather fight than eat ” ,   said Mr.Burns.
    Mr.Burns is claiming the aggregate amount of damages under the Application of $100 , 000 because of the harm the publishing by Councillor Sindt to her Facebook Page naming Mr.Burns is a paedophile / criminal has caused.
    “ Listen you pernicious and Un-Australian  bimbo, I have no sexual interest in male or female children and how dare you publish material to your Facebook Page stating that I do. My family has suffered at the hand of a paedophile. No he wasn’t a homosexual. He was a man wearing a black frock. He was a Catholic priest ”, Burns said.
    ENDS
    MEDIA ENQUIRES
    Garry Burns
    02 -9363-0372
    0407-910-309
    Solicitor Robert Balzola
    02-9283-8180
    0405-195-048.
    Councillor Sindt
    0499-981-233.

    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

    Australian Gay Rights Activist calls for donations to Help Fight Discrimination

    21 September 2015
    Australian Anti-Discrimination Campaigner Garry Burns is calling for donations on www.gofundme.com/bv4mre7c to help fund his work.
    Garry Burns is a well known Australian gay Anti-Discrimination Campaigner.
    Garry’s public interest work is all about removing unlawful vilification and discrimination against the gay community.
    Garry funds his work from his own pocket without any government assistance or support from Australian gay organisations.
    Mr.Burns unlike the gay organisations in Australia does not receive millions of public dollars and therefore relies on the donations of others to help him to continue his very important public interest work.
    “ Sometimes litigation is not always about money. I’m always wanting to engineer a creative settlement. Its terms must reflect my belief in the public interest in defending gay men ,  lesbians ,  rights to freedom from discrimination and vilification” , said Mr.Burns.
    Garry’s blog / website can be found at www://garyburnsdiscriminationactivist.com
    Garry’s blog / website above also has a PayPal account so secure donations can be made.
    Under : HELP fight discrimination.
    PayPal securely proceses donations for antidiscrimination@bigpond.com
    ENDS
    Garry Burns
    02-9363-0372 ( In Australia )
    0407-910-309 ( Cell )

    Luke McKee – Professional Victim Syndrome?

    Hi All

    With my work, I encounter a fare share of “loose canons:, however for 8 years now, one in particular has an unhealthy obsession with me and my work.

    I allege Luke McKee is a “Professional Victim”, and it is interesting to read about the inner working of such a person. I am not going to glorify McKee’s daily grind against the NSW Police, myself, Gays and Jews by writing what he does, you can easily find a lot of his ramblings by searching Google. The focus of this article, is to show the victims of Luke, what I allege is his disorder.

    Professional Victim – Narcissistic Personality Disorder

    A person with Narcissistic Personality Disorder (NPD) displays patterns of deviant behaviour that can create carnage for those around them (spouse, children, parents, siblings, friends, colleagues, peers, etc). Narcissistic Victim Abuse is abuse that has been caused by someone with this personality disorder. The NPD is not often medically diagnosed, so that the narcissistic individual goes undetected in society (home, work-place, organizations, social settings) and the victim’s plight unrecognised.

    A person with NPD has an inflated sense of their own importance, a deep need for attention and admiration, and a strong sense of entitlement. They believe they are superior and have little regard for the feelings of others. As a child, a healthy self-esteem (true self) did not develop in the narcissist so they built up defences to create a ‘false self’ in public. This is akin to wearing a public mask. Wearing the mask is not only emotionally exhausting, it also means that the narcissist is constantly on guard at being found out. They become overly sensitive to narcissistic injury which is any perceived threat (real or imagined) to the narcissist’s self-esteem or self-worth. In order to maintain their illusion and protect their ‘false self’ they seek narcissistic supply from unsuspecting victims.

    The narcissist views people as objects which can feed their needs (known as ‘sources of narcissistic supply’). The narcissist will use any tactic, without guilt, empathy or conscience, to make sure they get their narcissistic supply and their needs are met. Narcissistic supply comes from public attention such as fame, celebrity, notoriety, or infamy or private attention such as admiration, flattery, acclaim, fear, or even repulsion. Regular bearers of narcissistic supply include the spouse, children, friends, colleagues, partners and clients. Anything that acts as a status symbol that attracts attention and admiration for the narcissist is narcissistic supply, for example, a flashy car, expensive property, designer clothes, being a member of a church, cult, club, or a business.

    With an inflated sense of their own superiority, power and control, the narcissist renders themselves susceptible to all sorts of obsessions, compulsions, and addictions, for example, addiction to: narcissistic supply, grandiosity, control, power, rage, perfectionism, attention, fame etc. The devastating impact of these addictions on their significant others can result in Narcissistic Victim Syndrome. Most victims present with no idea about what has happened to them. Narcissistic abuse is insidious because the abuse is covert, cunning and indirect. Narcissists go to great pains to avoid being observed publicly as being abusive.  The Dr Jekyll and Mr Hyde behaviour creates fear, distress, confusion, inner turmoil, and chaos for the victim. The constant ‘walking on eggshells’ and attempting to avoid further conflict can be crippling. To complicate matters a narcissist is rarely medically diagnosed and often goes undetected in society (home, work, organisations, and social settings).

    For whatever the reason the victim entered the Dance of the Narcissist (a behaviour known as Co-Dependency) so that in the dance there was both: 1) a pleaser/fixer (victim) and; 2) a taker/controller (narcissist/addict).

    Victims present when they feel like they can’t cope. They are unaware that they have been living or working in a war zone. No-one has mentioned Narcissistic Personality Disorder (NPD) or narcissistic abuse to them. Victims of this narcissistic abuse often display a set, or cluster, of symptoms due to this physical, mental, emotional or spiritual abuse. In Narcissistic Victim Syndrome you are looking for a cluster of symptoms to emerge, many are the symptoms of trauma (avoidance behaviour, loss of interest, feeling detached, sense of a limited future, sleeping or eating difficulties, irritability, hyper-vigilance, easily startled, flashbacks, hopelessness, psychosomatic illnesses, self-harming, thoughts of suicide etc). Narcissistic abuse victims express feelings of humiliation and shame, and apt to self-blame. They have learned to take responsibility for the narcissist’s behaviour because they are constantly told the problem is their fault. Some victims develop Stockholm Syndrome and want to support, defend, and love the abuser despite what they have gone through.

    Victims tend to ‘dissociate’ or detach from their emotions, body, or surroundings. Living in a war zone where all forms of power and control are used against you (intimidation; emotional, physical and mental abuse; isolation, economic abuse, sexual abuse, coercion, control etc), the threat of abuse is always present. Dissociation is an automatic coping mechanism against overwhelming stress.

    Victims are often victimized by more than one person. They often internalize that something is wrong with them, that they deserve this kind of abuse, and then resign themselves to their fate. Victims may not have reached their potential in their personal or professional lives because they always have to stand in the shadow of their aggressor, and not upstage them.  They learn to live in the shadows without knowing why.

    Victims of narcissistic abuse often appear uncertain of themselves, constantly seeking clarification that they haven’t made a mistake or misheard something. Confidence may be so low that they have trouble making simple decisions. They will not be aware that this is caused by an abusive technique called ‘gaslighting’. Gaslighting is a technique of psychological abuse used by narcissists to instil confusion and anxiety in their victim to the point where they no longer trust their own memory, perception or judgment. With gaslighting, the victim initially notices that something happens that is odd, but they don’t believe it. This moves to defence as the victim fights against the manipulation. Confusion sets in after incessant comments such as: ‘You’re too sensitive’, ‘You’re crazy’, ‘You’re imagining things’ or ‘I never said that.’ Gradually, the victim cannot trust their own perceptions and doubt themselves. This often leads to depression. Broken and unable to trust themselves, they isolate themselves further. The victim now doubts everything about themselves, their thoughts and opinions, their ideas and ideals. They become co-dependent on the abuser for their reality.

    Victims need validation and education about what has happened to them. They need information about the medical condition of Narcissistic Personality Disorder and its toxicity in relationships. They need education about how they have contributed to their situation through co-dependence. They need therapy to deal with symptoms. They will need support to remove themselves from their narcissistic relationship, and to not repeat the cycle of abuse in their next relationship. One of their greatest challenges may come from not being believed by significant others, either because these others have not seen the private face of the narcissist or because they themselves are in the narcissist’s thrall.