Burns v Corbett; Gaynor v Burns (No 2)

In *Burns v Corbett; Gaynor v Burns (No 2)*, the Court of Appeal of New South Wales considered applications for costs following its determination that the NSW Civil and Administrative Tribunal (NCAT) lacked the constitutional authority to exercise judicial power over respondents residing in different states. The primary dispute concerned the jurisdiction of NCAT, with submissions on this point largely advanced by the Attorneys-General for the Commonwealth and New South Wales.

The Court was required to determine whether to award costs to the respondents in proceedings that had been removed to the Court of Appeal. Specifically, it had to consider the costs of one respondent facing contempt proceedings and the costs of another respondent who had initiated separate proceedings in the Court of Appeal, which were significantly expanded beyond the initial jurisdictional question.

The Court reasoned that while one respondent, facing contempt charges, was entitled to a costs order in their favour, the other respondent was not. This latter respondent had commenced two proceedings, one of which was dismissed, and the other was substantially broadened by the filing of extensive, unread material. Furthermore, all controversial submissions made by this respondent were rejected, and they had committed numerous procedural breaches of the Court's directions. As none of the relief sought by this respondent was granted, no costs order was made in their favour.

Consequently, in *Burns v Corbett*, the Court ordered that Mr Burns pay Ms Corbett’s costs of the questions removed to the Court of Appeal, including the costs of her notice of motion filed on 13 February 2017. In *Gaynor v Burns*, the Court ordered that Mr Gaynor pay Mr Burns’ costs of Mr Gaynor’s notice of motion filed on 13 February 2017.