Burns v Sunol [2018] NSWCATAD 10

Burns v Sunol [2018] NSWCATAD 10

Statement 1 posted by John Sunol had the capacity to incite hatred towards, or serious contempt for, Garry Burns in the ordinary member of the audience; although the dominant reason was being thought a paedophile, homosexuality was one of the genuine reasons, thus constituting unlawful vilification under s49ZT. Mr Burns suffered a real detriment as a result of victimisation linked to actions under the Anti-Discrimination Act. The evidence did not substantiate vilification regarding Statement 2 or against homosexual men as a group. The recusal application for apprehended bias was dismissed as a reasonable lay observer would not apprehend lack of impartiality by the Tribunal.

Jurisdiction
Australia
Judgment Date
10 January 2018
Procedural Posture
Civil Application (administrative and Equal Opportunity Division) / Principal Judgment; Post Merits, Orders, With Compensation Directions Pending
Outcome
Vilification complaint substantiated in part (Statement 1); balance dismissed; victimisation substantiated; recusal application dismissed.
Legal Topics
['homosexual Vilification' 'victimisation' 'procedural Fairness' 'apprehended Bias']
['human Rights' 'anti Discrimination'] ['homosexual Vilification' 'victimisation' 'procedural Fairness' 'apprehended Bias']

Case Brief

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Procedural Posture

Civil Application (administrative and Equal Opportunity Division) / Principal Judgment; Post Merits, Orders, With Compensation Directions Pending

Legal Issues

  1. 1 ['Whether statements made by John Sunol constitute unlawful homosexual vilification under Anti-Discrimination Act 1977 (NSW)' 'Whether statements constitute unlawful victimisation under Anti-Discrimination Act 1977 (NSW)' 'Whether Tribunal should be recused for apprehended bias']

Ratio Decidendi

Statement 1 posted by John Sunol had the capacity to incite hatred towards, or serious contempt for, Garry Burns in the ordinary member of the audience; although the dominant reason was being thought a paedophile, homosexuality was one of the genuine reasons, thus constituting unlawful vilification under s49ZT. Mr Burns suffered a real detriment as a result of victimisation linked to actions under the Anti-Discrimination Act. The evidence did not substantiate vilification regarding Statement 2 or against homosexual men as a group. The recusal application for apprehended bias was dismissed as a reasonable lay observer would not apprehend lack of impartiality by the Tribunal.

Court Disposition

Vilification complaint substantiated in part (Statement 1); balance dismissed; victimisation substantiated; recusal application dismissed.

Orders

  • ['The complaint alleging unlawful vilification in relation to Statement 1 is substantiated.' 'The balance of the complaint alleging unlawful vilification is dismissed.' 'The matter is listed for a directions hearing on 16 January 2018 at 9:30am.']