Burns v Sunol [2017] NSWCATAD 215

Burns v Sunol [2017] NSWCATAD 215

The complaint was substantiated because Mr Burns claimed to be homosexual and there was no sufficient reason to doubt that claim; the internet publication accessible to the public was a public act of Mr Sunol because he operated and controlled the website, had actual knowledge of the offending passage and took no steps to remove it; the passage had the capacity to incite hatred towards or serious contempt for Mr Burns by alleging sexual conduct with minors; and, read in context with assertions linking homosexuality and paedophilia and repeated references to Mr Burns' sexuality, that capacity arose at least in part on the ground of homosexuality. The recusal application failed because only...

Jurisdiction
Australia
Judgment Date
30 June 2017
Procedural Posture
Complaint of Unlawful Homosexual Vilification Under the Anti Discrimination Act 1977 (nsw) / Administrative and Equal Opportunity Division Determination of Complaint, Including Preliminary Applications for Recusal and to Call Evidence
Outcome
Complaint substantiated; recusal application refused; application to call Luke McKee refused; no damages awarded.
Legal Topics
['homosexual Vilification' 'public Act' 'internet Publication' 'standing to Bring Vilification Complaint' 'apprehended Bias' 'actual Bias' 'compensation for Non Economic Loss']
['human Rights' 'anti Discrimination' 'procedure' 'damages'] ['homosexual Vilification' 'public Act' 'internet Publication' 'standing to Bring Vilification Complaint' 'apprehended Bias' 'actual Bias' 'compensation for Non Economic Loss']

Case Brief

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Procedural Posture

Complaint of Unlawful Homosexual Vilification Under the Anti Discrimination Act 1977 (nsw) / Administrative and Equal Opportunity Division Determination of Complaint, Including Preliminary Applications for Recusal and to Call Evidence

Legal Issues

  1. 1 ['Whether Mr Burns had standing to bring the complaint.' 'Whether communication of the offending passage was a public act of Mr Sunol.' 'Whether the offending passage had the capacity to incite hatred towards or serious contempt for Mr Burns.' 'Whether any incitement was on the ground that Mr Burns is, or is thought to be, homosexual.' 'Whether the Tribunal should recuse itself for actual or apprehended bias.' 'Whether Mr Sunol should be permitted to call Luke McKee to give evidence.' 'Whether compensation should be ordered for hurt and distress.']

Ratio Decidendi

The complaint was substantiated because Mr Burns claimed to be homosexual and there was no sufficient reason to doubt that claim; the internet publication accessible to the public was a public act of Mr Sunol because he operated and controlled the website, had actual knowledge of the offending passage and took no steps to remove it; the passage had the capacity to incite hatred towards or serious contempt for Mr Burns by alleging sexual conduct with minors; and, read in context with assertions linking homosexuality and paedophilia and repeated references to Mr Burns' sexuality, that capacity arose at least in part on the ground of homosexuality. The recusal application failed because only...

Court Disposition

Complaint substantiated; recusal application refused; application to call Luke McKee refused; no damages awarded.

Orders

  • ['Complaint is substantiated.' 'The application that the Tribunal recuse itself is refused.' 'The application for leave to call Luke McKee to give evidence is refused.' 'The Tribunal declined to make an award for damages.']