Burns v Sunol (No 2) [2017] NSWCATAD 236

Burns v Sunol (No 2) [2017] NSWCATAD 236

The Tribunal found that only parts (the heading and second paragraph) of the second vilification complaint article had the capacity to incite hatred and serious contempt towards homosexuals and the applicant on the ground of their sexuality, due to the tone and implication that homosexual men are paedophiles. The first vilification complaint and the victimisation complaint were dismissed due to insufficient causal link to homosexuality or absence of objective detriment. Compensation was denied because the applicant failed to adequately demonstrate loss caused by the proven vilification and did not sufficiently mitigate his loss.

Parties
Applicant: Garry Burns; Respondent: John Sunol
Jurisdiction
Australia
Judgment Date
31 July 2017
Procedural Posture
Complaint Under Anti Discrimination Act 1977 (nsw) / Final Merits Decision
Outcome
Second vilification complaint substantiated in part; first vilification complaint dismissed; victimisation complaint dismissed; compensation not awarded.
Legal Topics
Homosexual Vilification, Victimisation, Assessment of Damages, Public Act Definition
Human Rights Administrative Law Homosexual Vilification Victimisation Assessment of Damages Public Act Definition

Case Brief

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Parties

Garry Burns

Applicant

John Sunol

Respondent

Procedural Posture

Complaint Under Anti Discrimination Act 1977 (nsw) / Final Merits Decision

Legal Issues

  1. 1 Whether communications published by the respondent constituted unlawful homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 (NSW)
  2. 2 Whether the respondent victimised the applicant contrary to s 50 of the Act
  3. 3 Assessment of damages under s 108 of the Act

Ratio Decidendi

The Tribunal found that only parts (the heading and second paragraph) of the second vilification complaint article had the capacity to incite hatred and serious contempt towards homosexuals and the applicant on the ground of their sexuality, due to the tone and implication that homosexual men are paedophiles. The first vilification complaint and the victimisation complaint were dismissed due to insufficient causal link to homosexuality or absence of objective detriment. Compensation was denied because the applicant failed to adequately demonstrate loss caused by the proven vilification and did not sufficiently mitigate his loss.

Court Disposition

Second vilification complaint substantiated in part; first vilification complaint dismissed; victimisation complaint dismissed; compensation not awarded.

Orders

  • The second vilification complaint is substantiated in part. The balance of the complaint is dismissed.
  • The first vilification complaint is dismissed.