NSW Crest Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation:
Burns v Sunol  NSWCATAD 131
7 October 2014
25 June 2015
Administrative and Equal Opportunity Division
J Wakefield, Senior Member
J Schneeweiss, General Member
M O’Halloran, General Member
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 common sense 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) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
ANTI-DISCRIMINATION – Homosexual vilification- Public Act- Incitement – Remedies – Restraining Order
Anti-Discrimination Act 1977 NSW ss 49ZS, 49ZT, 88, 104, 108
Civil and Administrative Tribunal Act 2013 ss 3(d), 45
Burns v Corbett  NSWADT 227
Burns v Dye  NSWADT 32
Burns v Sunol  NSWADT 246
Collier v Sunol  NSWADT 261
Collier v Sunol  NSWADT 339
Sunol v Collier (EOD)  NSWADTAP 51
Sunol v Collier (No 2)  NSWCA 44
Garry Burns (Applicant)
John Christopher Sunol (Respondent)
G Burns (Applicant in person)
J C Sunol (Respondent in person)
REASONS FOR DECISION
By these proceedings, Mr Burns makes three complaints that the publication of certain material on his website by Mr Sunol constitutes homosexual vilification in breach of s 49ZT of the Anti-Discrimination Act 1977 NSW. For the reasons which follow the Tribunal finds that Mr Burns’ first two complaints are substantiated and that the third complaint is partly substantiated.
On 24 March 2014, Mr Burns lodged his three complaints with the President of the Anti-Discrimination Board. The President’s delegate accepted the complaints for investigation under s 89B of the Anti-Discrimination Act. The President received further information from Mr Burns on 24 March 2014.
The complaints accepted for investigation by the President and identified in the complaint summary in the President’s Bundle are as follows:
“1. The complaint of homosexual vilification in the publishing of comments on the respondent’s blog on 23 March 2014 and endorsing comments by Luke McKee (C2014/0238). …
- The complaint of homosexual vilification for comments published on the respondent’s blog on 21 March titled ‘Rape little boys taken off ABC shows – this is same sex marriage’ and following comments (C2014/0371) …
The complaint of homosexual vilification in relation to comments made by the respondent on his blog published on 21 March 2014 headed
‘Some very interesting videos on corruption from Luke McKee’ (C2014/01372) …”
On 14 May 2014 the President wrote to Mr Sunol and sought a response to the allegations. No response was received from Mr Sunol.
The President referred the complaints to the Tribunal pursuant to s 93C of the Anti-Discrimination Act on 21 July 2014. The President has identified each of the complaints as homosexual vilification in breach of ss 49ZS and 49ZT of the Anti-Discrimination Act. The period of the complaints is from 21 to 24 March 2014.
The matter was heard on 7 October 2014. The parties were self- represented. At the commencement of the hearing Mr Sunol sought leave for Mr Geoff McKee to appear as his representative at the hearing. Mr Sunol said that Mr McKee was the father of Mr Luke McKee of whom Mr Burns had also made complaint but that he was independent. No real basis for the application was advanced. Mr Sunol gave no reason why he could not represent himself at the hearing and indeed said that he was able to represent himself.
Mr Burns objected to Mr McKee representing Mr Sunol. He said that Mr McKee was the subject of a separate complaint before the Tribunal which was to be set down for a case conference.
Section 45 of the Civil and Administrative Tribunal Act 2013 provides:
“45 Representation of parties
(1) A party to proceeding in the Tribunal:
(a) has the carriage of the party’s own case and is not entitled to be represented by any person, and
(b) may be represented by another person only if the Tribunal grants leave for the person to represent the party
(3) The Tribunal may at its discretion:
(a) grant or refuse leave under subsection (1)(b) and
(b) revoke any leave that it has granted.”
On the basis of the parties’ submissions and the Tribunal file it was apparent that:
Mr Sunol had served no witness statement and did not seek to give oral evidence at the hearing the facilitation of which would require separate representation,
Mr Sunol anticipated making an application to call Mr McKee as a witness in his case,
Mr McKee’s son was the subject of complaint in other proceedings before the Tribunal in which Mr Burns is the applicant in which event questions could arise as to Mr McKee’s independence and interest,
There was no evidence of any medical or other reason why Mr Sunol could not represent himself, and
Mr Sunol has previously represented himself before the Tribunal and informed the Tribunal that he could represent himself at the hearing.
In those circumstances we considered it appropriate to refuse Mr Sunol’s application for leave for Mr McKee to appear as his representative.
Later in the course of the hearing Mr Sunol sought to call Mr McKee to give evidence. He had not served a witness statement from Mr McKee or given advance notice to Mr Burns of the nature of the proposed evidence. When asked about the nature of that evidence, Mr Sunol said that Mr McKee knew of relevant matters and could give evidence about them. In particular, Mr Sunol said that he (Mr Sunol) did agree with some of the issues which had been published on his website about which complaint was made but that he did not believe that publication was going to harm anybody and that he did not post things which were totally inappropriate in his view. He said that evidence about this could also be given by Mr McKee. When questioned by the Tribunal about whether the evidence would be relevant including whether it went to the question of whether or not any publication, if a public act, had the effect of inciting hatred, serious contempt or severe ridicule of homosexuals, Mr Sunol said that he thought his publications would not incite hatred, that he was “not out to incite hatred” and that Mr McKee could give evidence of this.
We could not be satisfied on the basis of Mr Sunol’s submissions as to the real nature of the proposed evidence or how it would be relevant. Mr Sunol’s submissions appeared to concern evidence of his intention regarding publication. This is not a necessary element of a contravention of s 49ZT; see Sunol v Collier (No 2)  NSWCA 44 per Bathurst CJ at  and Basten JA at . Additionally, it would have been unfair to Mr Burns to allow late evidence of which he had not had notice or the opportunity to prepare for or respond to. Mr Sunol gave no reason for the lateness of the proposed evidence.
Lastly, in light of the opportunity already afforded to the parties by the pre hearing process to serve any evidence, and having regard to the object set out in s 3(d) of the Civil and Administrative Tribunal Act 2013 NSW to promote resolution of the real issues in the proceedings justly, quickly, cheaply and with as little formality as possible, it would not have been appropriate in our view to adjourn the hearing to allow for the service of further evidence, the real nature and relevance of which could not be identified. For these reasons, we refused Mr Sunol’s application to call Mr McKee as a witness.
Full Decision can be viewed here