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

    Advertisements

    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 Balzola loses against encounter with Mr.Burns. Appeal Dismissed.

    NSW Crest

    Civil and Administrative Tribunal

    New South Wales

    Medium Neutral Citation:
    Sunol v Burns [2015] NSWCATAP 207
    Hearing dates:
    4 September 2015
    Date of orders:
    24 September 2015
    Decision date:
    24 September 2015
    Jurisdiction:
    Appeal Panel
    Before:
    The Hon D Cowdroy OAM QC, Principal Member
    Dr J Renwick SC, Senior Member
    Decision:
    Appeal dismissed.
    Catchwords:
    CIVIL AND ADMINISTRATIVE TRIBUNAL – Anti-Discrimination – Homosexual vilification – Public Act – Incitement – Remedies – Restraining Order – Appeal Dismissed
    Legislation Cited:
    Anti-Discrimination Act 1977 (NSW)
    Civil and Administrative Tribunal Act 2013 (NSW)
    Cases Cited:
    Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
    Attorney-General v 2UE Sydney Pty Ltd and Burns [2006] NSWCA 349
    Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A
    Attorney-General v Nottingham Corporation [1904] 1 Ch 673
    Burns v Sunol [2015] NSWCATAD 131
    Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
    Hanson v Radcliffe UDC [1922] 2 Ch 490
    Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851
    Sunol v Collier [2012] NSWCA 14
    Sunol v Collier (No 2) [2012] NSWCA 44
    Texts Cited:
    None
    Category:
    Principal judgment
    Parties:
    John Christopher Sunol (Appellant)
    Gary Burns (Respondent)
    Representation:
    Robert Balzola, solicitor, by leave for the Appellant.
    Gary Burns (Respondent in person)
    File Number(s):
    AP 15/42897
    Publication restriction:
    None
    Decision under appeal
    Court or tribunal:Civil and Administrative TribunalJurisdiction:Administrative and Equal Opportunity DivisionCitation:[2015] NSWCATAD 131Date of Decision:25 June 2015Before:J Wakefield, Senior Member; J Schneeweiss, General Member; M O’Halloran, General MemberFile Number(s):1410384

    REASONS FOR DECISION

    Facts

    1. The appellant appeals the decision of the New South Wales Civil and Administrative Tribunal (“the Tribunal”), which was delivered on 25 June 2015: seeBurns v Sunol [2015] NSWCATAD 131. By that decision, a restraining order was made under s 108(2) of the Anti-Discrimination Act 1977 (NSW) (“the Act”) (“the restraining order”) which prohibits the appellant from publishing certain material. For the reasons which follow, the appeal is dismissed.
    2. The orders of the Tribunal identified the material (“the offending material”) which the appellant published on a website as set out below, which material was found to have contravened the provisions of s 49ZT of the Act.
    3. The Tribunal identified and defined the offending material as follows:

    (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.

    1. Such publications were made on 23 March 2014 on the appellant’s internet blog. Further publication of material was made twice on 21 March 2014.
    2. On 24 March 2014 the respondent lodged three complaints with the President of the Anti-Discrimination Board and these were accepted under s 89B of the Act. On 14 May 2014, the President wrote to the appellant seeking his response to those complaints.
    3. The appellant failed to respond. Accordingly, the complaints were referred by the President to the Tribunal under s 93C of the Act on 21 July 2014.

    Preliminary Issue

    1. At the commencement of the appeal, Senior Member Renwick, as a member of the Appeal Panel brought to the parties’ attention that he had appeared for the Attorney-General:
    1. who was the intervener in a matter involving the Appellant, namely Sunol v Collier [2012] NSWCA 14; see also Sunol v Collier (No 2)[2012] NSWCA 44; and
    2. who was the moving party in a matter involving the respondent, namely Attorney-General v 2UE Sydney Pty Ltd and Burns [2006] NSWCA 349.
    1. Each case involved constitutional or jurisdictional questions.
    2. The Appeal Panel records that the Appellant and the Respondent, having been apprised of Senior Member Renwick’s involvement in the above cases, consented to this appeal proceeding with the Appeal Panel as currently constituted.

    Tribunal findings

    1. Section 49ZT of the Act relevantly provides:

    (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.

    1. The Tribunal, having considered the complaints and having found that breaches of s 49ZT of the Act had occurred, noted that the respondent sought neither damages nor an apology from the appellant. Rather, the respondent sought to prevent the appellant from continuing to publish statements via the appellant’s website which the respondent claimed were harmful to homosexual men and women. The appellant made no submissions to the Tribunal concerning any such order.
    2. The Tribunal, having identified the offending material in the first paragraph of its order, then ordered the appellant be restrained from publishing the same or similar material (“the restraining orders”). Such order provides:

    (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.

    Notice of Appeal

    1. The grounds of appeal upon which the Appellant brings the appeal are as follows:

    1.    The Tribunal below misconstrued the law, specifically s 49ZS of the Anti-Discrimination Act.

    2.    The Tribunal failed to apply the test of ‘Public Act’ within the meaning of s 49ZS, adequately or at all.

    3.    The Tribunal took into account irrelevant considerations, in particular the decision to order the Appellant to be responsible for any material on any website, “whether or not controlled by him” [Order 2].

    4.    The Tribunal failed to take into account relevant considerations, to wit the fact that the Appellant does not pass any or all of the statutory or common law tests to be applied when considering the question of what is a “Public Act” within the meaning of s 49ZS.

    5.    The Tribunal failed to apply the model litigant principles and other rules of Procedural Fairness in that the Respondent was entirely unrepresented throughout the proceedings and furthermore, the Tribunal made no attempt to afford procedural fairness to him.

    6.    That a breach of the rules of natural justice occurred in connection with the making of the decision: In that it was not put to the Respondent whether he could control materials that are not capable of being controlled or upon which he is responsible.

    7.    That procedures that were required by law to be observed in connection with the making of the decision were not observed: That section 49ZS and each element was not applied, to wit, specifically at Paragraph 41 of the said Judgment where only subsection 49ZS(a) is applied but not 49ZS(c) upon which the decision is silent and not considered.

    8.    That upon Ground [7], the decision was Manifestly Unreasonable against the statutory construction of the Act such that no reasonable Tribunal member could make the decision that it did.

    9.    That the person who purported to make the decision did not have jurisdiction to make the decision: That the decision to make Orders against a person upon which there is acknowledged even within the body of the Order a prohibition against the Respondent to refrain from publishing material whether or not controlled by him is incompetent and fails the test of reason against the statutory purpose of the Act. It is ultra vires for the Tribunal Below to make a decision that effectively prohibits a person from publishing text of another in circumstances where that publication is no more than a link and upon which the other side of the link is a website of which the Appellant has no control whatsoever.

    10.    That the decision was not authorised by the enactment in pursuance of which it was purported to be made: The Decision maker being the Tribunal Below has usurped for itself a power to make Orders of the kind in Order 2 which it does not have the authority to make and is thereby ultra vires.

    11.    That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made: That Order 2 extends beyond the exercise of this Tribunal’s power in encumbering a Respondent to comply with an Order that is subject to doctrines of frustration and impossibility. Specifically, the Respondent can never know whether he is breaching the Rule for lack of certainty, because he cannot know at any moment of time the content of a website not controlled by him.

    12.    That the decision involved an error of law, whether or not the error appears on the record of the decision: The Decision in Order 2 specifically, involves an error of law in the misapplication of section 49ZS of the ADA.

    13.    That there was no evidence or other material to justify the making of the decision: There is no evidence of the existence of the link but for untested submissions going to purported link between the Respondent and ultimate linked materials. Further, this material was not supported by any forensic examination on behalf of the referring person the President of the ADB.

    14.    It is common to see the matters being referred by the ADB but they are not joined as a party for the purpose of cross-examination on questions of what investigations, if any, they conducted in reaching the decision to refer this and other matters to the Tribunal for consideration. This is a serious denial of procedural fairness and natural justice in failing to afford the Respondent any capacity to question the referring power and the factual and legal basis upon which the referral is made.

    15.    That the decision was otherwise contrary to law: in failing to apply property or at all the provisions of the ADA specifically those provisions in s 49ZS and 49ZT of the Act.

    1. The submissions have refined the specific matters to be relied upon and the written arguments identified the particular matters to be considered. We consider below only those grounds presented at the hearing of the appeal.

    Uncertainty of restraining Order (Order 2)

    1. The appellant contends that the use of the word “publishing” in Order 2 is intended to have an effect in the future and may not be confined to the reference to “material” which was defined in Order 1. The appellant submits that he would be “left floundering as to whether any other publication, now or in the future, will render him in contempt of Order 2 if Order 1 is not the limit of Order 2”. That is, the appellant submits that there is no capacity for him to know what “material” within Order 2 can mean, other than by reference to Order 1. Secondly, it is submitted that the phrase in Order 2: “same or similar effect”, “expressly provides that there is a category of materials over and above the stipulated material found in Order 1 which is in addition to and not expressly provided for in Order 1”.
    2. The appellant claims that the wording of Order 2 is “beyond the capacity of any fair minded lay person to identify with any accuracy or precision what conduct on his part trigger [sic] a contempt of Order 2 by virtue of the fact that the material does not exist or that the Tribunal is being speculative and prospective in the making of these orders against which the Respondent [sic Appellant] has no case to answer”. Accordingly he submits that it is “beyond a fair minded reasonable person to know what materials of ‘similar effect’ can mean” and that the term is so vague as to “reduce the Order to impotence”.
    3. The issues raised by the appellant give rise to a consideration of power of the Tribunal to make an order of a kind that is now in question.
    4. In a matter such as this, jurisdiction is invested in the Tribunal to exercise any power given to it either by the Act or the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (“NCAT Act”) (see s 29). Section 108 of the Act relevantly provides:

    (1)   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 complaints substantiated in whole or in part, it may do any one or more of the following:

    (a)…

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

    1. Section 58 of the NCAT Act provides:

    A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

    1. Accordingly a broad power is invested in the Tribunal to make orders in the nature of a restraining order, which may be subject to conditions.
    2. Once such power has been invested, as with a general declaratory power, the discretion of the Tribunal to fashion an order to suit the circumstances is “almost unlimited”: see Hanson v Radcliffe UDC [1922] 2 Ch 490 at 507 per Lord Sterndale MR, making observations in reference to the rules applicable in the High Court of Justice (UK), Order XXV Rule 5, which were cited with approval by Gibbs J inForster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438.
    3. The Tribunal found that there had been a breach of the Act by the appellant, and further that circumstances justified an order in the nature of a quia timetinjunction in view of the fact that, whilst no future act had yet occurred, there was the apprehension of the possibility that such conduct would be repeated.
    4. Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack[1924] AC 851, where Viscount Finlay said (at 859): “Some particular tort is threatened, nothing has yet been done. The commission can be restrained by injunction”. See also the observations of Lord Sumner at 866-867.
    5. In the present circumstances, the restraining order is based upon the premise that if there were a repetition of publication of the offending material, it would constitute a violation of the respondent’s legal rights. If there is a strong probability that the apprehended breach could occur in the future, such an injunction will be issued to restrain the infringement of a party’s legal rights: Attorney-Generalv Nottingham Corporation [1904] 1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A. at p 127 per Lord Cozens-Hardy MR, who said:

    It is as old as the hills that if a man threatens that he intends to do something which is unlawful, and asserts a right to do it, the Court will grant an injunction to restrain him. It is wholly irrelevant to say whether he has done it or not.

    1. Here, the terms of s 108 of the Act amply support the orders made.
    2. The terms of any such restraining order must be clear and unambiguous. In this instance, Order 1 defines, with precision and clarity, the statements, words and nature of the words statements which the appellant by Order 2, the appellant is restrained from publishing.
    3. The restraining order which has been made by the Tribunal is one which the Appeal Panel concludes is one which would be readily understood by the “ordinary reasonable reader”. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, the Court of Appeal said (omitting references), in relation to the reading of an alleged defamatory publication:

    The ordinary reasonable reader … is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.

    1. Whilst the above quotation from Marsden was made with reference to the reader of published material, the Appeal Panel sees no reason not to apply the same observations, by analogy, to the reader of the restraining order. We are satisfied that the terms of the restraining order can be readily understood by a reasonable reader, including the appellant. We see no difficulty in the appellant having a clear understanding of the limits so proscribed by the restraining order.

    Extension of Restraining Order (Order (2))

    1. In respect of the submission that the appellant is incapable of discerning what material lies outside the scope of order 1, Order 2 restrains the publication of “the material” as defined, “including statements to the same or similar effect”. By this extension, words of homosexual vilification which might not be identical to the words referred to in Order 1 but which are similar to or having the same effect of those words, are included in the prohibition.
    2. As the Appeal Panel has already concluded, the subject matters described in Order 1 are quite clear and can be readily understood in plain English. A reading of the words and subject matters referred to in Order 1 make it plain not only to the appellant, but to any other person, not only the exact words, but in addition, the very nature of the material which the appellant is not to publish. Order 1 therefore properly defines and limits the scope of the offending material.

    Scope of order

    1. The appellant also submits the words “on any website” in Order 2 is vague and ambiguous, and he questions whether the order anticipates only current websites at the time the order is made or whether it would extend to prohibiting future websites. He submits that Order 2 is “infected with frustration, unenforceability and illegality”, and that the order is too broad to be enforceable.
    2. Order 2 has the effect of both operating in the present, and in the future. There is no time limit. The order would be ineffective if it were framed as to operate only retrospectively. The order operates prospectively for the very purpose of ensuring that the appellant be restrained from engaging in the same or similar conduct in the future.
    3. Section 108(2)(b) of the Act specifically authorises the making of an order to restrain future conduct. Whilst the appellant submits that the Tribunal has exceeded its jurisdiction by making orders which are “anticipatory, speculative and conflict with the ordinary operation of the Act”, the Appeal Panel sees no basis for such submission in light of the specific and broad powers invested in the Tribunal by s 108 of the Act which specifically mandates the making of an order of the kind referred to in Order 2.
    4. Accordingly, the Appeal Panel rejects the submission that the Tribunal “has no power to make prospective, pre-emptive orders in anticipation of future events that have not yet come into actuality and upon which the Tribunal has no evidence or factual matrix upon which to make such orders”.
    5. Order 2 is comprehensive in its effect. Whilst the order may restrict the conduct of the appellant, that is a necessary consequence of the unlawful conduct which has been found against him.

    Website control

    1. Next, the appellant objects to the words contained in Order 2, namely “whether or not controlled by him”. The appellant submits that the material would not be under his effective control, if it is on a website not controlled by him.
    2. It does not assist the appellant to concentrate on words “on any website” in isolation of other words contained in the restraining order. The prohibition upon the appellant is directed to him and restrains him from publishing “the material [i.e. the offending material] … on any website whether or not controlled by him”.
    3. The restraint is directed to prohibition of statements of homosexual vilification authored by the appellant of the same, or same nature, as defined in Order 1. The restraining order prohibits the appellant from publishing the offending material. If others should do so, they expose themselves to the possibility of being charged with aiding and abetting a breach of the Tribunal’s restraining order. Without such restraint, any order which the Tribunal might make would be rendered nugatory.
    4. In the decision appealed from, the Tribunal said, in terms which we adopt, and which further dispose of this ground, the following:

    92    In Sunol v Collier (EOD) [2006] NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials “Including statements to the same or similar effect, on any website whether or not controlled by him”. In so doing, the Appeal Panel said at [49] ‘We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes republishing the statements that the Tribunal has found to be unlawful. Courts and Tribunals have also made orders pursuant to comparable legislation enjoining a respondent from publishing or republishing material ‘to the same or similar effect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be difficult for Mr Sunol to predict which statements will be in breach of the AD Act, he has been given a great deal of guidance on this issue by the Tribunal. We agree with Mr Collier that the order should cover the publication of material to the same or similar effect as the material that the Tribunal has found to be unlawful.”

    93    On the question of whether Mr Sunol should be prevented from publishing such statements on other websites, the Appeal Panel in Sunol v Collier (EOD) [2006] said at [50]:

    “We also agree that Mr Sunol should be prevented from publishing such statements on any websites, whether or not they are controlled by him. If he is able to post statements on websites not controlled by him, then those public acts should be covered by the Tribunal’s order. For those reasons, the following order should be substituted for Order 2:

    Mr Sunol is to refrain from publishing the material referred to in the previous order including statements to the same or similar effect, on any website whether or not controlled by him.”

    94    In a similar situation in Burns v Sunol [2012] the Tribunal proposed an injunctive order. If an order were to be made that Mr Sunol restrain himself from further publications the conduct restrained would have to be limited to “conduct rendered unlawful by Act or the regulations”; see s 108(2)(b) of the Anti-Discrimination Act, Burns v Sunol [2012] at [95] and Sunol v Collier (EOD) [2006] at [49].

    95    Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.

    Contravention of the Act

    1. In the written submissions the appellant submitted that there is no contravention under s 49ZS and s 49ZT of the Act. However, no submissions were made either orally or in writing in support of this submission and at the hearing this submission was abandoned. Nevertheless we have considered the carefully reasoned decision of the Tribunal.
    2. In Sunol v Collier (No 2) [2012] NSWCA 44, the Court of Appeal considered whether statements of a similar kind to those contained in the offending material constituted a breach of s 49ZT of the Act. The Court noted the very wide operation by such section (see decision of Bathurst CJ at [13]). Further at [70] Allsop P said:

    Certain subject matters are of a character that care needs to be taken in discussion of them in order that forces of anger, violence, alienation and discord are not fostered. Race, religion and sexuality may be seen as examples of such. Racial vilification of the kind with which the Federal Court dealt in Toben v Jones [2003] FCAFC 137; 129 FCR 515 is capable of arousing the most violent and disturbing passions in people. If it were to be carried on for political purposes it would make the effect on people no less drastic. Similar types of vilification can be contemplated directed to other racial groups, other religious groups or groups having different sexual orientations than what might be said to be ‘usual’. A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, is entitled to require civility or reason and good faith in the discussion of certain topics.

    1. Based upon the foregoing analysis, the Appeal Panel is satisfied that the offending material readily satisfies the prohibition contained in s 49ZT of the Act.

    “Bad faith”

    1. The appellant suggests that the restraining order was granted “in bad faith” where both the complainant and the Tribunal were aware that the orders sought and made were never capable of being put into effect by virtue of the argument and reasons contained in the submissions relied upon by the appellant. We find that there is no merit in any of the submissions made by the appellant. There is no evidence of any “bad faith” as alleged.
    2. Accordingly, it follows that the challenges to the Tribunal’s orders do not succeed.

    Orders

    1. The Appeal 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.

    Anti-Islam Solicitor Robert Balzola loses another encounter…..

    Anti-Islam Solicitor Robert Balzola loses another encounter in the Tribunal with Anti-Discrimination Campaigner Garry Burns.

    NSW Crest

    Islam Hater Balzola Looses Again
    Islam Hater Balzola Looses Again

    corbett

    Civil and Administrative Tribunal

    New South Wales

    Medium Neutral Citation:
    Corbett v Burns [2015] NSWCATAP 172
    Hearing dates:
    12 August 2015
    Date of orders:
    17 August 2015
    Decision date:
    17 August 2015
    Jurisdiction:
    Appeal Panel
    Before:
    Boland J ADCJ (Deputy President)
    Decision:
    1. The applicant’s application for an extension of time to appeal the orders of the Administrative Decisions Tribunal made 15 October 2013 (“the orders”) is dismissed.
    2. The application for a stay of the orders is dismissed.

     

    Catchwords:
    ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW)
    Legislation Cited:
    Anti Discrimination Act 2007 (NSW)
    Civil and Administrative Tribunal Act 2013 (NSW)
    Cases Cited:
    Allesch v Manuz (2000) HCA 40, 203 CLR 172
    Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294
    Jackson v NSW Land and Housing Corporation [2014] NSWCATAP22
    Metwally v University of Wollongong [1985] HCA 28, 60 ALR 68, 59 ALJR 481
    Texts Cited:
    Australian Civil Procedure 10th ed (Cairns)
    Cross on Evidence, Heydon JD
    Category:
    Procedural and other rulings
    Parties:
    Tess Corbett (aka Therese Maree Corbett) (Applicant)
    Garry Burns aka Gary Burns (Respondent)
    Representation:
    Counsel:
    Not applicableSolicitors
    Robert Balzola and Associates (Applicant)
    K & L Gates (Respondent)
    File Number(s):
    AP 15/47082
    Decision under appeal
    Court or tribunal:Administrative Decisions TribunalJurisdiction:Administrative ReviewCitation:[2013] NSWADT 227Date of Decision:15 October 2013Before:M Chesterman, Deputy PresidentD Kelleghan Non-Judicial MemberA Lowe Non-Judicial MemberFile Number(s):131029

    REASONS FOR DECISION

    Introduction

    1. These reasons concern interlocutory applications made by Ms Tess Corbett (Ms Corbett) in proceedings brought by Mr Garry Burns (Mr Burns) in the former Administrative Decisions Tribunal in 2013.
    2. Ms Corbett seeks an order staying four orders made by the Administrative Decisions Tribunal (ADT) on 15 October 2013 pending an application for an extension of time in which to file an application for leave to appeal, and if leave is granted, to appeal the ADT’s decision. The substantive application namely the appeal, and application for leave to appeal, being made out of the time provided in the Civil and Administrative Tribunal Rules 2014 (rule 25), requires, as a threshold requirement, that the Tribunal determine whether it should grant leave to extend time to file the application.
    3. Normally, an application such as the present application would be considered unremarkable. But the circumstances in which this matter came before me are unusual. This is because Ms Corbett has already agitated an appeal on a question of law against the relevant 2013 orders, and an application for leave to appeal on other grounds.
    4. The appeal on a question of law, and the application for leave to appeal on other grounds, was heard, as provided in the Civil and Administrative Tribunal Act 2013 (NSW), as an internal appeal by the Tribunal’s appeal panel. That appeal was dismissed, as was the application for leave to appeal on other grounds, on 30 April 2014. Ms Corbett was represented by counsel on the hearing of the appeal.
    5. Ms Corbett’s solicitor, who appeared for her on this application, submits that his client is entitled to bring another appeal against the 2013 orders on different grounds to those agitated before the appeal panel in 2014.
    6. In his oral submissions Mr Balzola asserted, because the Tribunal had allocated an appeal file number to the application, and a pro forma letter was forwarded to him by the Registry staff setting out the usual requirements for filing material in an appeal that, by inference, the Tribunal had granted an extension of time in which an application for leave to appeal may be filed. At the hearing I pointed out to Mr Balzola that I did not accept that submission, and afforded him the opportunity to make such submissions as he wished in support of all interlocutory applications before the Tribunal. Mr Balzola was also afforded an opportunity to file submissions in reply to oral submissions made by Mr Rodney who appeared for the respondent, Mr Burns.
    7. For convenience and ease of understanding, I will in these reasons refer to Ms Corbett as the applicant and Mr Burns as the respondent.

    Issues to be determined in this interlocutory application.

    1. I discern the following issues were raised in the submissions made in interlocutory applications now before the Tribunal:
    1. Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and/or to seek leave to appeal on other grounds? If an extension of time is granted other issues identified below arise.
    2. Is it necessary and/or appropriate at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?
    3. Does the applicant have a “right” to a second appeal in respect of the 2013 orders because she was denied procedural fairness by the Tribunal?
    4. As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.
    5. Is the only proper appeal right remaining to the applicant an application for leave to appeal out of time to the Supreme Court of New South Wales or to seek judicial review?
    6. If the applicant has established she should be granted an extension of time in which to appeal, should the orders made in 2013 be stayed?
    7. Is the Tribunal itself, in addition to government parties before it, bound by the NSW Model Litigant Policy?

    Procedure in the Tribunal and relevant statutory provisions

    1. If the applicant has a right to bring this application, s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) is relevant. It enables an applicant to bring an application for an extension of time to appeal a primary decision of the Tribunal. Section 41 provides as follows:

    41 Extensions of time

    (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

    (2) Such an application may be made even though the relevant period of time has expired.

    1. An application for an extension of time is an interlocutory application as defined in s 6 of the Civil and Administrative Tribunal Act.
    2. Section 27 of the Civil and Administrative Tribunal Act and the accompanying notes set out the composition of the Tribunal for appeals. Section 27 (1) (d) provides that I may determine this application alone.
    3. Of significance to this application is s 32 of the Civil and Administrative Tribunal Act. That section sets out the extent of the Tribunal’s internal appeal power. Section 32 (3) (a) precludes the bringing of an internal appeal against any decision of the appeal panel. The section and accompanying notes are instructive:

    32 Internal appeal jurisdiction of Tribunal

    (1) The Tribunal has “internal appeal jurisdiction” over:

    (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

    (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

    (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction:

    (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

    (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

    (3) However, the internal appeal jurisdiction of the Tribunal does not extend to:

    (a) any decision of an Appeal Panel, or

    (b) any decision of the Tribunal in an external appeal, or

    (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or

    (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.

    The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. [my emphasis]

    1. An appeal against a decision of an internal appeal panel lies to the Supreme Court or to the District Court of NSW depending on the constitution of the Tribunal except in respect of contempt, or in respect of a decision of a Registrar (see s 82).
    2. I observe that the Tribunal’s form for filing an appeal may be described as a “multi-purpose” form. This is best explained by reference to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [8]. There the President and Deputy President said:

    Before noting the grounds of appeal relied upon, it is important to appreciate that although the form is called a Notice of Appeal it does not necessarily mean the party is lodging an appeal as of right. The Tribunal’s Notice of Appeal form allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders or decision appealed from or simply appealing as of right from an internally appealable decision. In addition, the form allows the party to request a hearing in a location other than Sydney and to provide other information, submissions and evidence. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal’s practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multipurpose form has the benefit that a person seeking to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form so that there is greatly reduced scope for procedural confusion and technical mistakes. In addition, an applicant for an extension of time or for leave to appeal does not have to file a draft notice of appeal in addition to their application. In these circumstances and for the sake of simplicity, a party completing a Notice of Appeal form is called an appellant, even if technically that party might more precisely be considered to be merely an applicant for an extension of time in which to appeal or an applicant for leave to appeal.

    Background

    1. The background to this matter is conveniently set out, in part, in the reasons for decision of the Administrative Decision Tribunal on 15 October 2013. That Tribunal noted, in a complaint made to the Anti-Discrimination Board (the Board), the respondent alleged that the applicant had made vilifying statements about homosexuals that were reported on 22 January 2013 on the front page of a Victorian newspaper “the Hamilton Spectator”. The applicant’s statements were noted to have been republished in other newspapers and on the ABC in the next few days.
    2. By letter dated 23 April 2013 the President of the Board referred the respondent’s complaint to the ADT.
    3. An interlocutory order was made by the ADT that the respondent notify the Registrar of the applicant’s residential address. Subsequently, various letters, culminating in correspondence advising of a hearing date for the application, were forwarded by the Registrar to the applicant. The letter advising of the hearing date was sent by registered post and a receipt for the letter was in evidence before the ADT. The respondent advised the ADT he too had written to the applicant advising of the hearing date.
    4. The ADT, having satisfied itself that the applicant had notice of the proceedings, heard the matter in her absence on 3 October 2013.
    5. On 15 October 2013 the ADT published its reasons for decision and found the complaint of unlawful vilification was substantiated and made orders including an order that the applicant publish within 21 days an apology in the Sydney Morning Herald.
    6. On 12 November 2013 the applicant lodged an appeal against the ADT’s decision. The appeal was listed in this Tribunal on 30 April 2014 pursuant to the transitional provisions in place on the introduction of the Civil and Administrative Tribunal Act 2013 (NSW). At the appeal hearing the applicant was represented by Mr M White of counsel.
    7. In its decision dismissing the appeal, the appeal panel noted at [17] the applicant relied on three grounds of appeal in respect of a question of law. Later, in dealing with the application for leave to appeal, the appeal panel noted that the applicant had sought leave to tender a statement setting out her reasons for non-attendance at the 2013 hearing. But the appeal panel found there was no reason why the matters relied on could not have been presented at the hearing.
    8. On 7 July 2015 the respondent lodged in the Tribunal a General Application Form in which he seeks an order from the Tribunal that the Tribunal declare the applicant guilty of contempt under s 73(2) of the Civil and Administrative Tribunal Act and pursuant to s 73 (5) the Tribunal refer the matter to the Supreme Court for determination. That application was listed before me for directions on 12 August 2015, and is listed for hearing before the President and myself on 17 August 2015.
    9. On 31 July 2015 the applicant filed the current application in which she seeks an extension of time to file an internal appeal against the “primary decision in Burns v Corbett [ADT] 131029 made in 2013”.
    10. In written submissions provided by the applicant at the directions hearing it is asserted that, on 3 August 2015, an application for a stay was filed “seeking orders that the effect of the section 114 Certificate and Decision in the Internal Appeal be determined”. The submission further records on 3 August 2015 that a Notion of Motion was filed in the Supreme Court “to stay the effect of a Judgment Order made 24 August 2014 in matter Burns v Corbett [NSWSC 28109/2014] in the Certificates List”.
    11. At the interlocutory hearing the applicant was represented by Mr Balzola. The applicant was contacted by telephone and advised that she could participate in and/or listen to the proceedings. However, the applicant requested I terminate the call, on the basis I would ring her again should any relevant issue arise that might require her to give instructions to her solicitor.
    12. Mr Balzola spoke to and expanded his written submissions which I accepted as an aide memoire. Mr Rodney, solicitor, made oral submissions on behalf of the respondent. I afforded Mr Balzola the opportunity to provide written submission in reply as there was insufficient time for him to do so orally. I also ordered that Mr Balzola file any submissions on which he sought to rely in respect of the contempt application by 14 August 2015. I reserved my decision in respect of the interlocutory applications.

    Discussion

    1. I propose to discuss the merits of the interlocutory application by reference to the issues identified earlier in these reasons, albeit there are necessarily overlaps in the matters discussed.

    Is the applicant statutorily barred from bringing the appeal? If not, has the applicant, in accordance with relevant principles, established that she should be granted an extension of time in which to appeal and or to seek leave to appeal on other grounds?

    1. It is clear from the terms of s 32 that the applicant is precluded from bringing an internal appeal against the decision of the appeal panel of 2014. But the applicant seeks to effectively “by-pass” that provision by seeking to again appeal the 2013 orders of the ADT.. The applicant also seeks to challenge the validity of the Certificate issued under s 114 of the Civil and Administrative Tribunal Act because of an asserted error in the spelling of the respondent’s name in the certificate, albeit at the same time seeking to challenge the validity of that certificate in the Supreme Court.
    2. The principal thrust of the submissions made on behalf of the applicant is that she was denied procedural fairness in the 2013 because she was not, as a self-represented litigant, warned by the Tribunal of three matters:
    1. that she should obtain legal representation;
    2. that the respondent had filed material which was potentially adverse to her; and
    3. if she did not appear the Tribunal may make a decision adverse to her.
    1. Ancillary to the assertions above, Mr Balzola further submits that the Tribunal is itself bound by the Model Litigant Guidelines, (semble the NSW Model Litigants Policy) and he relies on the decision of Croft J in Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294.

    Is it necessary at this point of time for the Tribunal to make any orders about the spelling of the respondent’s first given name?

    1. Mr Rodney submits that, if there is any error in the Certificate issued under s 114 of the Anti-Discrimination Act, that may be corrected under s 63 of theCivil and Administrative Tribunal Act. The terms of s 114 are clear. That section empowers the Tribunal to issue a certificate that may be registered in the Supreme Court to facilitate enforcement. Section 114 is in the following terms:

    114 Enforcement of non-monetary orders

    (1) This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.

    (2) For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms.

    (3) A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.

    (4) Nothing in this section limits or otherwise affects section 78 of the Civil and Administrative Tribunal Act 2013.

    1. Section 63 of the Civil and Administrative Tribunal Act provides:

    63 Power to correct errors in decisions of Tribunal

    (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

    (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

    (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:

    (a) there is an obvious clerical or typographical error in the text of the notice or statement, or

    (b) there is an error arising from an accidental slip or omission, or

    (c) there is a defect of form, or

    (d) there is an inconsistency between the stated decision and the stated reasons.

    :

    1. Section 5 of the Civil and Administrative Tribunal Act defines the meaning of “decision”. It includes the giving of a certificate. The relevant decision of the Tribunal requires the applicant to give a written apology to the respondent who is named as Mr Garry Burns. The Board in its correspondence to the Tribunal in 2013 referred to receipt of a complaint by Mr Garry Burns. Correspondence on the relevant Tribunal file disclosed that the respondent communicated in writing with the Tribunal on various occasions and signed his name above typed words “Mr Garry Burns”.
    2. However, the certificate issued by the Registrar names the applicant as Mr Gary Burns but correctly records the Tribunal order which includes the requirement that the applicant write a letter of apology to Mr Garry Burns.
    3. In the present contempt proceedings the respondent’s solicitors name him as “applicant” using the spelling “Garry” for his first name.
    4. The file however discloses that the respondent wrote to the President of the Board on 31 January 2013 and concluded his letter with the typewritten description “Gary Burns”. It is unclear to me whether the respondent in the period between January 2013 and the present adopted a change of name, or whether the Board made a typographical error in the spelling of his given name. If there has been a typographical error, and the 2013 reasons and decision should read Gary rather than Garry for the purpose of the required apology, I am satisfied that the decision certificate under s 114 can be amended by application to the Registrar. Certainly, the inconsistency in the spelling of the respondent’s first given name in the certificate appears necessary.
    5. I note the submissions on this topic could be said to apply equally to documents filed by the applicant given that in those documents she is described with a given name of “Tess” and that she wrote to the Registrar of the ADT on 7 February 2014 using a typed name of Therese Corbett. In her Notice of Appeal in the 2014 appeal the applicant is described as “Therese Maree Corbett”.
    6. I am not satisfied on the state of the evidence now before me that it is appropriate I make any orders about either party’s name. The issue should be determined if necessary by both parties filing an application and evidence in support to request amendment to any Tribunal decision.

    As is submitted on behalf of the respondent, is the Tribunal functus officio and/or is the subject matter of the litigation finally concluded between the parties in the Tribunal such that the doctrine of res judicata applies.

    1. I turn now to the substantial question of whether or not the Tribunal has jurisdiction to entertain a second appeal in respect of the 2013 decision.
    2. It is clear that the applicant exercised her right to appeal against the 2013 decision. In that appeal she was legally represented and was granted leave to file a statement in which she explained why she did not attend the hearing and her belief in respect of the effect of the NSW legislation. The Appeal Panel rejected this evidence noting “There was no suggestion that this evidence was not available at the time of the hearing”.
    3. I am satisfied that the applicant has exercised her appeal rights, and any argument that she may wish to raise in respect of procedural fairness is a matter to be raised in an application for an extension of time to seek leave to file an appeal to the Supreme Court of NSW against the dismissal of her appeal, or to seek judicial review.
    4. I am fortified in this view having regard to the discussion found in Australian Civil Procedure 10th ed. Cairns (Thomson Reuters) particularly at 6.130 (see also Cross on Evidence JD Heydon at [5170] ). I also take into account the discussion in Metwally v University of Wollongong [1985] HCA 28 60 ALR 68; 59 ALJR 481 where the High Court, having noted that the case before it was not “a case in which an order has been made against a party who was not heard”, said:

    It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

    1. While the applicant was not present at the primary hearing that was a deliberate choice she made. There is no doubt from her statement tendered at the appeal she was well aware of the hearing date. I further note she was provided with information in correspondence from the Tribunal about procedure at a case conference held prior to the hearing. She was represented by counsel at the appeal and had the opportunity to raise any issue relating to procedural fairness she wished to agitate.
    2. I am satisfied it would be an abuse of process under s 55 to permit a second appeal to go forward and this case does not fall within the “exceptional circumstance” type of matter referred to by the High Court in Metwally. The applicant has a remedy if she wishes to agitate it by seeking an extension of time to seek leave to appeal the appeal panel’s decision to the Supreme Court of NSW on a question of law.
    3. It follows having determined that to allow a further appeal (even if filed in time which this application is not) it is strictly unnecessary for me to consider both remaining interlocutory orders sought. However, in the event I am wrong about the right to bring a second appeal, I propose to discuss the other issues raised albeit briefly.
    4. I now consider whether on the evidence before me, the applicant has demonstrated she should be granted an extension of time in which to appeal and to seek leave to appeal the 2013 orders.

    Relevant law principles – extension of time to appeal

    1. The principles to be applied on such an application are not in doubt. They are usefully set out in [18-22] in Jackson as follows:

    Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act “is to facilitate the just, quick and cheap resolution of the real issue in the proceedings“.

    An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson[1990] HCA 30, 93 ALR 479 at [2]:

    The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v.Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:

    The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

    The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT – Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard.

    Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawsonquoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant’s favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.

    The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

    The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant – Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

    The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision – Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschildv Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success – Jackamarra at [7];

    Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

    The length of the delay;

    The reason for the delay;

    The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

    The extent of any prejudice suffered by the respondent (to the appeal),

    Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

    It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable – Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] – [59].

    Discussion – extension of time to appeal
    1. The delay since the 2013 orders is significant being a period of approximately 22 months. The reasons advanced for the delay are set out in paragraph 12A of the Notice of Appeal. They are:
    1. The appellant has only recently obtained the services of legal advice to assist in her matter on a pro bono basis.
    2. It is in the interests of justice that a decision fundamentally stained by manifest denial of procedure fairness be remedied.
    1. I do not accept the first argument advanced by the applicant. Her statement relied on before the appeal panel and her representation on the hearing of the appeal demonstrates that she had and obtained legal advice in 2014. There is simply no plausible explanation of why a further period of a year elapsed before this application was filed.
    2. In respect of her second argument I have already noted that she has had the benefit of appeal rights to the appeal panel in which she was able to argue any breach of the rules of natural justice and procedural fairness. She had a right to seek leave to appeal the internal appeal panel decision to the Supreme Court within the time provided in the rules but it appears on the evidence before me, that she chose not to do so. She may still seek an extension of time to do so.
    3. I am satisfied that because the applicant still has a remedy, namely the right to seek an extension of time to seek leave to appeal in the Supreme Court the refusal to grant an extension of time in which to appeal the 2013 orders will not cause her substantial prejudice.
    4. I also note that applicant’s application refers to the adducing of new evidence going to statutory defences under s 49 ZS and s 49ZT of the Anti-Discrimination Act and evidence sought to be adduced going to constitutional issues and rights of political expression at a hearing de novo. I note that the interpretation of “defences” under s 49 ZT was extensively argued before the appeal panel in the applicant’s internal appeal as was the question of implied right of political communication.
    5. At its highest the applicant’s case is that she may succeed on a constitutional issue if she satisfies another appeal panel that she was denied procedural fairness at the 2013 hearing. It is hard to see how the ADT could be said to have erred in not affording the applicant procedural fairness, when knowing full well the proceedings were listed for hearing, she took no steps at all to contact the Tribunal but simply chose to ignore the Tribunal’s correspondence to her including an information sheet about participation in a case conference (which could have occurred by telephone).
    6. I accept that when a party does not have notice of a hearing or may for some significant reason such as serious ill-health (as occurred in the factual situation in Allesch v Maunz 2000 HCA 40; 203 CLR 172) it may be appropriate to set aside an order made in that party’s absence. I also accept that in accordance with the duties owed by a court to a self-represented litigant a tribunal has a like duty. So much is clear from the many authorities dealing with the question of treatment of self-represented litigants including the decision of Croft J in Comaz. But the facts in Comaz are readily distinguishable from the present facts.
    7. In Comaz the departure from the rules of natural justice and procedural fairness arose because of the nature of the member’s questioning of a witness, the manner in which the proceedings were conducted, and the failure to warn a litigant in person of the likelihood of the drawing of an adverse inference because of a failure to adduce evidence from a crucial witness. The claims of lack of procedural fairness were exacerbated because of the manner in which a government body, as a model litigant before the tribunal, in its final submission first raised a Jones v Dunkel point without affording the self-represented party notice of its intention to do so, or for the presiding member to permit a re-opening by the applicant to meet that submission. Here the applicant with notice of the hearing in 2013 made a deliberate decision not to appear. It was at all times prior to the hearing within her capacity to contact the registry staff and to seek advice about the hearing including alternate means for her to participate in the hearing, and/or to file a statement asserting her belief that the Tribunal had no jurisdiction. She chose to take neither of those steps.

    Should the Tribunal grant a stay of the 2013 orders?

    1. I have already noted that the applicant is not entitled to agitate a second appeal to the internal appeal panel. As a separate matter, I have found the applicant has not, in accordance with well-defined principles, satisfied the onus she bears, even if she had a right to a second appeal, to an extension of time in which to bring such an application.
    2. It follows therefore that it is unnecessary that I deal with her application for a stay of the 2013 orders.

    Does the model litigant policy apply to the Tribunal as well as parties before it.

    1. Mr Balzola in his submissions in reply at [36] states:

    It was open and necessary in the full discharge of the Tribunal’s obligations as a Model Litigant, acting solely upon the referral power conferred to it by s 93C of the Anti-Discrimination Act and its powers therein, to implement procedural fairness upon the party to whom that fairness was owed.

    1. It is unnecessary that on this interlocutory application I deal with this issue as it is not a justiciable matter before me. I merely note that the policy annexed to Mr Balzola’s submissions applies to the State and its agencies when litigating before Courts and Tribunals. It is a policy that affects agencies such as the Health Care Complaints Commission when that Commission refers proceedings to the Tribunal and then prosecutes such proceedings in the Tribunal. The Tribunal is not the State nor is it an agency of the state. It is, as the objects of the Civil and Administrative Tribunal Act record, an “independent” Tribunal charged with making decisions, reviewing decisions, determining some appeals against decisions and exercising such other functions as are conferred on it by legislation.

    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.

    https://www.caselaw.nsw.gov.au/decision/55d15391e4b03e53d026a0df

    Anti-Islam Solicitor Robert Remo Balzola loses another one

    (re-published)

    THE Muslim community has thanked Bendigo for its support after Victoria’s planning tribunal brought the city a step closer to its first mosque.

    The Victorian Civil and Administrative Tribunal found on Thursday there was no reason to reject the mosque on planning grounds after analysing its location and the need for the building in Bendigo.

    After an emotive hearing spanning almost 12 months, including allegations of bias against the tribunal president, the City of Greater Bendigo’s initial decision to approve the mosque was upheld.

    In his ruling, VCAT president Justice Greg Garde said negative social, economic and environmental impacts had not been demonstrated and there was a genuine need for a building of its type in Bendigo.

    Objectors have confirmed they will launch an appeal in the Supreme Court on grounds of allegations of bias and failures of due process from both VCAT and the City of Greater Bendigo.

    The decision to appeal means an outcome on the mosque proposal is unlikely to be finalised this year.

    The group of 15 objectors have 20 days to launch the appeal.

    Without an appeal, the Australian Islamic Mission would just need a planning and building permit before construction could begin, unlikely to be opposed by relevant departments.

    Bendigo’s Muslim community welcomed VCAT’s decision, releasing a statement saying the construction of the mosque was still likely to take some time, but the community would continue to support each other to “live with peace, harmony and respect”.
    See your ad here
    The City of Greater Bendigo also released a statement supporting VCAT’s ruling.

    Appeal likely in Supreme Court

    Objectors to the mosque proposal will launch an appeal in the Supreme Court with further claims of bias and allegations of a failure to adhere to due processes from the state’s planning tribunal.

    The Victorian Civil and Administrative Tribunal upheld the City of Greater Bendigo’s initial decision to approve the Bendigo mosque, but the issue is unlikely to be resolved with an appeal to be launched.

    In a statement, lawyer Robert Balzola – who acted on behalf of the 15 individuals who took the matter to VCAT – confirmed the decision to make an appeal in the Supreme Court was made early in the VCAT proceedings.

    Mr Balzola said VCAT’s ruling was a “death knell for public interest and citizens rights in Victoria”.

    The statement also outlined the possibility of a Victorian parliamentary inquiry into the conduct of both VCAT and the City of Greater Bendigo in relation to planning approvals.

    The group has 20 days to launch the appeal in the Supreme Court.

    In his ruling, Victorian Civil and Administrative Tribunal president Greg Garde said arguments against the mosque had been unclear.

    “Alleged social, economic and environmental impacts have not been demonstrated as being significant or likely with respect to the proposed mosque,” he said.

    “There is no such place of worship currently available to those practising Islam in the region.”

    Mr Balzola had attempted to argue against aspects of the mosque proposal on planning grounds.

    He had initially tried to have the tribunal president removed on claims of bias, while their main argument focused on the demand for a mosque in Bendigo and its position near residential areas.

    His argument also included that “a mosque has specific and different attributes to other places of worship”, that there are “concerns about Islam and its integration with western culture” and a fear of the “Islamification of Bendigo”.

    But in the ruling, Justice Garde said there was evidence of between 120 to 125 families of 25 different nationalities of Islamic faith in Bendigo.

    He said general population growth was likely to be the greatest driver of an increase in people of Islamic faith in Bendigo, with the city predicted to grow by 40,000 people in the next 20 years.

    Islamic Mission welcomed VCAT ruling

    The Australian Islamic Mission believes the approval of the Bendigo mosque in the Victorian Civil and Administrative Tribunal is a positive step for the city as a whole.

    The mission, on behalf of the Muslim community of Bendigo, released a statement on the decision.

    While final planning and building permits are still to be granted – and an appeal in the Supreme Court appears highly likely – the community’s statement outlined their vision for harmony and respect in Bendigo.

    “The establishment of the Bendigo Islamic Centre will take some time, until then we as a community will continue to support each other to make it a success and live with peace, harmony and respect,” the statement read.

    “The Bendigo Islamic Centre will integrate with all other Bendigo residents, communities and faiths and will promote tolerance, harmony and understanding, thereby positively contributing to the city of Bendigo.”

    The Muslim community thanked City of Greater Bendigo mayor Peter Cox, councillors, local members of parliament and other religious leaders for their support during the VCAT proceedings.

    The statement said the Muslim community wanted the mosque to “set an example for multiculturalism, the true essence of Australia”.

    They also thanked the broader community for its support.

    Mayor Peter Cox addressed the media soon after the outcome was made public.

    He said it was a “great day for Bendigo”.

    “We need to acknowledge that there is a diversity within our community and that we have the emphatic belief that everybody needs to be able to practice their beliefs,” Cr Cox said.

    He said it was “a small minority” of people in Bendigo who had a problem with the mosque.

    The City of Greater Bendigo approved the mosque in June last year after receiving no objections from relevant planning authorities.

    Between 250 and 450 objections were submitted to the project.

    Relevant planning authorities did not oppose the overall construction of the mosque.

    Cr Cox said the appeal, and any future appeals, were costly for the council but he appreciated the democratic rights of citizens in Bendigo.

    “The independent umpire has given their decision and I’m hoping that people will respect and accept that,” he said.

    “If the objectors want to go a step further, in our democratic society, that’s their right to do that, but I hope that it’s done in a respectful way.

    “It certainly is costing council dollars – not only in dollar terms, but in time as well.”

    City of Greater Bendigo planning manager Ross Douglas said objectors were able to appeal the mosque on social grounds as part of the Planning and Environment Act.

    “The tribunal found that there were no social issues that this proposal would cause,” he said.