Sydney firm acts pro bono in HCA vilification case

Legal proceedings, scales of justice

A self-proclaimed “out loud and proud” law firm based in Sydney’s Newtown has appeared in the High Court of Australia on behalf of Garry Burns.

Mr Burns appealed to the HCA following a determination in 2016 that despite being a victim of homophobic vilification, he had no standing to pursue the matter in the NSW Civil and Administrative Tribunal because the alleged perpetrators were not residents of New South Wales.

The gay rights activist was attempting to sue political aspirant and Katter Party of Australia candidate Tess Corbett, who made comments in the Hamilton Spectator in 2013. Ms Corbett told the publication that she did not want “gays, lesbians or paedophiles working in my kindergarten” and associated homosexuals with paedophiles.

“Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights,” Ms Corbett was quoted as saying.

When Queensland’s Senate hopeful Bernard Gaynor later endorsed Ms Corbett’s statements, he was suspended him from the Katter Party Australia.

In January last year the NSW Civil and Administrative Tribunal found Ms Corbett’s comments had vilified homosexual people. She was ordered by the tribunal to place a public apology in the Sydney Morning Herald.

Mr Burns sought a court-imposed fine against the former candidate for the federal seat of Wannon in western Victoria when she failed to publish an apology.

On appeal, the Supreme Court of NSW said that the tribunal did not have the jurisdiction to deal with either Ms Corbett or Mr Gaynor. Mr Burns subsequently took the matter to the HCA.

Dowson Turco partner Nicholas Stewart (pictured) offered to represent Mr Burns pro bono for the costs aspect of his HCA appearance.

“This is a very technical matter and we are grateful for Garry’s instructions to act pro bono,” Mr Stewart said.

“Without Garry, the LGBTI community would be behind the times and the fact that his matter is before the highest court in our country is testament to his drive for justice for our community.”

The lawyers appeared before the court last week. [Outcome here].

Sonja Freeman, one of the lawyers at Dowson Turco, said that the firm had celebrated recent legal milestones for LGBTI rights, such as marriage equality and LGBTI rights in the Family Court. She noted that efforts to help Mr Burns’ vilification case were just as important.

“Garry Burns is a brave and unrelenting advocate of the Australian LGBTI community. He has fought tirelessly to prevent homophobic discrimination and to bring about a safer environment for the LGBTI community,” Ms Freeman said.

“We want to assist Garry to ensure that tribunals in NSW can assist victims of discrimination and vilification even when perpetrators are located interstate,” she said.


Corbett to face Supreme Court On Contempt


18 January 2016

Corbett to face the Supreme Court 15 February 2016
A former candidate from Bob Katter’s Australia Party who likened gays and lesbians to pedophiles during an interview on the campaign trail in 2013 had been found to have engaged in homosexual vilification under the Anti-Discrimination Act 1977 ( NSW ) by the former NSW Administrative Decisions Tribunal ( ADT )  and ordered the defendant to publish an apology in the Sydney Morning Herald pursuant to the Anti-Discrimination Act 1977.
Ms.Corbett was Bob Katter’s candidate for the Victorian seat of Wannon in the federal election until she was stood down in January of 2013 after telling her local paper , “ I don’t want gays , lesbians or pedophilies working in my kindergarten”.
“ If you don’t like it , go to another kindergarten “ , Ms.Corbett told the Hamilton Spectator.
When asked if she considered homosexuals to be in the same category as pedophiles , Ms.Corbett replies , “ yes “.
“ Pedophiles will be next in line to be recognised in the same was as gays and lesbians and get rights, “ she said.
Ms.Corbett appealed the 2013 decision of first instance citing St Paul as a defence but her appeal was rightly dismissed by the court of appeal.
Anti-Discrimination Campaigner and Public Interest Litigant Garry Burns initiated the proceedings against Ms.Corbett under the Anti-Discrimination Act 1977 ( NSW ). The Tribunal ordered the defendant to publish an apology in the Sydney Morning Herald in a prominent position pursuant to the Anti-Discrimination Act 1977 at her own expense and to also apologise to Mr.Burns in writing.
Ms.Corbett has failed to comply with an order of the NSW Civil Administrative Tribunal ( NCAT ) and on Tuesday 22 December 2015 Mr.Burns commenced “ contempt ” proceedings against the defendant in the NSW Supreme Court.
The Orders Mr.Burns seeks the court to make are ;
1. Ms.Corbett be found guilty of contempt of Court for failing to comply with the order made on the 24 September 2014 , in that the defendant failed to procure by 13 November 2015 , at her expense , the publication of the apology in the Sydney Morning Herald pursuant to the Anti-Discrimination Act 1977.
2. Ms.Corbett be found guilty of contempt of Court for failing to comply with the order made on the 24 September 2014 , in that the defendant failed to forward by 13 November 2015 a signed letter of apology to the plaintiff Mr.Burns.
3. The defendant Ms.Corbett be punished for her contempt by “ Fine “.
4. The defendant pay the plaintiff’s costs on an indemnity basis.
Mr.Burns is “ NOT ” seeking that the defendant Ms.Corbett be punished for her contempt by “ Jail “.
“ My public interest work is not about punishing individuals , it is about educating people in powerful positions of their responsibilities under the Anti-Discrimination Act 1977 to not make pernicious public statement’s that have a “ capacity ” or “ effect ” of inciting ridicule , contempt or hatred against homosexual Australians ” , Mr.Burns said.
Hearing Details
The Motion is listed at 9am on Monday 15 February 2016 in the Supreme Court of NSW.
Mr.Burns said , “ It is now up to the Judiciary on how it deals with this defendant in relation to the allegation of “contempt ”. My initiating of “contempt proceedings” against Ms.Corbett is to send a very clear and precise message to the Australian public that there are consequences if a defendant of an order of the NSW Civil Administrative Tribunal ( NCAT ) ignores it ”.
Mr.Burns wanted to engineer a very creative settlement / remedy. It’s terms must reflect his belief in the “public interest” in the defending of gay men and women’s rights to freedom from public acts of discrimination and or unlawful homosexuality vilification.
For further information please contact Garry Burns on ;
02 -9363-0372 or 
The defendant’s solicitor is Robert Remo Balzola who can be contacted on the below numbers ;
02-9283-8180 or

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

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

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By Evelyn Schlatter and Robert Steinback

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

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

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

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

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

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

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

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

MYTH # 2
Same-sex parents harm children.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MYTH # 9
No one is born gay.

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

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

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

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

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

MYTH # 10
Gay people can choose to leave homosexuality.

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

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

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

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

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

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

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

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

Katter Australia Party cancels Bernard Gaynor’s bid for Senate preselection over Twitter gay slur | The Courier-Mail

Gaynor's Gay slurs - Dumped from Katter Party
Gaynor’s Gay slurs – Dumped from Katter Party

BOB Katter’s party has cancelled Bernard Gaynor’s bid for preselection on the Senate ticket after he said he did not want his children taught by gay teachers.

Source: Katter Australia Party cancels Bernard Gaynor’s bid for Senate preselection over Twitter gay slur | The Courier-Mail

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


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
Appeal Panel
Boland J ADCJ (Deputy President)
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.


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
Procedural and other rulings
Tess Corbett (aka Therese Maree Corbett) (Applicant)
Garry Burns aka Gary Burns (Respondent)
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



  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.


  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.


  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.

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.