Burns v Gaynor

[2025] NSWCATAD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Burns v Gaynor [2025] NSWCATAD 65

Hearing dates:

5 June 2024, 14 August 2024

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

(1)   The respondent’s application for a stay is dismissed.

(2)   The proceedings are dismissed for want of jurisdiction.

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) – interim order – complaint of vilification on the basis of homosexuality – no utility in granting interim relief

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings – no jurisdiction

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), ss 49ZS, 49ZT, 93C

Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 30, 34B, Part 3A

Justice Legislation Act (No 2) 2017 (NSW)

Cases Cited:

Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254

Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63

Gaynor v Attorney-General of New South Wales [2020] NSWCA 48

Gaynor v Burns [2025] NSWSC 185

Category:

Procedural rulings

Parties:

Garry Burns (Applicant)
Bernard Gaynor (Respondent)

Representation:

Counsel:
R Rasmussen (Respondent)

Solicitors:
Applicant (Self-represented)
R Balzola (Respondent)

File Number(s):

2024/00170852

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicant, Mr Burns, asks the Tribunal to dismiss his application, which arises as a result of a referral by a Delegate of the President of the Anti-Discrimination Board of NSW of a complaint he made about the conduct of the respondent, Mr Gaynor, who is a person who resides in the State of Queensland.

2. Mr Gaynor asks the Tribunal to stay these proceedings pending the determination of other proceedings that he has commenced in the Supreme Court of New South Wales in which he seeks, among other things, judicial review of the decisions of the Delegate of the President of the Anti-Discrimination Board of NSW to receive a complaint made about him by Mr Burns and to subsequently refer that complaint to the Tribunal (Judicial Review Proceedings).

3. The parties appeared before the Tribunal and made oral submissions as well as providing written submissions.

4. Subsequent to the hearing of Mr Gaynor’s stay application, the Judicial Review Proceedings were determined. The Supreme Court dismissed the summons ordered costs against Mr Gaynor in favour of the Attorney-General of New South Wales, who was the only defendant to actively participate in the proceedings: Gaynor v Burns [2025] NSWSC 185.

5. For the following reasons, the Tribunal dismisses both Mr Gaynor’s stay application and the substantive proceedings commenced by Mr Burns.

Background

6. The parties to these proceedings have a long and storied history as opponents in litigation in the Courts and this Tribunal, as well as in other places. This was succinctly described by Bell P (as the Chief Justice then was) in Gaynor v Attorney-General of New South Wales [2020] NSWCA 48 at [1]-[3] in the following terms:

“For some years, Mr Bernard Gaynor (Mr Gaynor), who lives in Queensland, and Mr Garry Burns (Mr Burns), who lives in New South Wales, have been involved in a series of disputes. In the words of Harrison J (the primary judge), Mr Gaynor is a conservative blogger focussing on issues regarding national security, politics and the defence of the traditional family unit whilst Mr Burns is a self-described gay Australian anti-discrimination campaigner. Each of these men maintains a website which they employ to publicise their respective opinions.

Mr Burns has since May 2014 made a large number of complaints to the President of the Anti-Discrimination Board (the Board) pursuant to the Anti-Discrimination Act 1977 (NSW) (the ADA) in relation to statements made by Mr Gaynor. Some 23 of these complaints were referred by the President of the Board to the New South Wales Civil and Administrative Tribunal (NCAT) pursuant to s 93C of the ADA.

In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns (HC)), in dismissing a series of appeals from this Court, including one brought by Mr Burns against Mr Gaynor (see Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 (Burns (NSWCA)), the High Court held that ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) were invalid to the extent that they purported to confer jurisdiction upon NCAT, in circumstances where the complainant and the respondent to the relevant complaint were “residents of different States” within the meaning of s 75(iv) of the Commonwealth Constitution (the Constitution).”

Facts

7. On 29 December 2023, Mr Burns made a complaint to Anti-Discrimination NSW (ADNSW) against Mr Gaynor, alleging a contravention of the Anti-Discrimination Act 1977 (NSW), ss 49ZS and 49ZT. The specifics of the complaint are not presently relevant.

8. Both s49ZS and s 49ZT are contained in Division 4 of Part 4C of the Anti-Discrimination Act, which is the division concerned with protection from vilification of persons or members of a group who are homosexual. Section 49ZS is not a contravention provision; it serves only to define what a “public act” is for the purposes of Division 4.

9. The provision that makes certain conduct unlawful on the basis of vilification of a person or members of a group of persons on the basis of homosexuality is s 49ZT(1), which states:

(1)  It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

10. Subsection 49ZT(2) sets out statutory excuses and defences that are not presently relevant.

11. Because the complaint was received in hard copy by post during a shut-down period, ADNSW registered the complaint as received on 4 January 2024.

12. In February and April 2024, Mr Gaynor, both directly and through his solicitor, made written representations to ADNSW. Those representations included an assertion that, since Mr Gaynor is a resident of Queensland, ADNSW had no jurisdiction to investigate the complaint.

13. By letter dated 15 April 2024, a conciliation officer with the Anti-Discrimination Board advised that a Delegate of the President of the Anti-Discrimination Board did not accept that assertion; instead, the Delegate found that the threshold criteria for acceptance of a complaint were met. The letter then advised that the complaint would be referred to the Tribunal.

14. On 8 May 2024, a Delegate of the President of the Anti-Discrimination Board referred the matter to the Tribunal pursuant to the Anti-Discrimination Act, s 93C.

15. On 30 May 2024, Mr Gaynor commenced the Judicial Review Proceedings by filing a summons in the Supreme Court of New South Wales seeking judicial review of two decisions of the Delegate of the President of the Anti-Discrimination Board. The first decision identified in the summons was the decision by the Delegate of the President of the Anti-Discrimination Board to accept Mr Burns’ original complaint for investigation; the second decision identified is the decision to refer the complaint to the Tribunal.

16. By the prayers for relief set out in the summons filed in the Judicial Review Proceedings, Mr Gaynor asserted that both decisions of the Delegate of the President of the Anti-Discrimination Board should be quashed because they were not made according to law. Mr Gaynor sought additional relief in the Judicial Review Proceedings, including an order to stay the present proceedings of the Tribunal and an order to dismiss the proceedings in the Tribunal.

17. There were four defendants to the Judicial Review Proceedings: Mr Burns was the first defendant, the Delegate of the Anti-Discrimination Board (NSW) was the second defendant, this Tribunal was the third defendant and the Attorney-General of New South Wales was the fourth defendant. Mr Burns filed a submitting appearance in the Judicial Review Proceedings on 11 June 2024; likewise, the Delegate of the Anti-Discrimination Board (NSW) and the Tribunal filed submitting appearances on 24 June 2024. The only defendant to take an active part in the proceedings was the Attorney-General. The Tribunal was informed by Mr Gaynor, at a further directions hearing on 14 August 2024, that the Judicial Review Proceedings had been listed for a final hearing in December 2024.

Law

18. In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, a matter which involved the same parties with the addition of Ms Corbett, the High Court decided that the Tribunal was not able to exercise federal jurisdiction of the kind referred to in the Constitution, ss 75 and 76. This is because, as Leeming JA later explained in Gaynor v Attorney-General of New South Wales at [131]; citing Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254, the Tribunal is ‘a tribunal in respect of which federal jurisdiction cannot be vested, notwithstanding that it may, in some circumstances, exercise judicial power.’

19. Federal jurisdiction includes matters where residents of different states are the subject of a referral to the Tribunal by the President of the NSW Anti-Discrimination Board because such referrals seek that the Tribunal exercise its general jurisdiction under the Civil and Administrative Tribunal Act, s 29; but not, for example, its administrative review jurisdiction: Civil and Administrative Tribunal Act, s 30.

20. Part 3A of the Civil and Administrative Tribunal Act was inserted by the Justice Legislation Act (No 2) 2017 (NSW) and came into operation on 1 December 2017. Kiefel CJ, Bell and Keane JJ in Burns v Corbett noted that the commencement of Part 3A occurred four days before the hearing of that appeal in the High Court, and it was unnecessary to consider its operation. Their Honours noted, nonetheless, that Part 3A provides a mechanism for matters to be heard by an authorised court instead of the Tribunal if, upon an application for leave by a person with standing, the court is satisfied that the Tribunal does not have jurisdiction to determine the application because its determination involves the exercise of federal diversity jurisdiction: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [11].

21. Section 34B of the Civil and Administrative Tribunal Act provides:

(1)  A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal.

(2)  The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that—

(a)  the application or appeal was first made with the Tribunal, and

(b)  the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and

(c)  the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and

(d)  substituted proceedings on the application or appeal would be within the jurisdictional limit of the court.

(3)  An application for leave must be—

(a)  filed with the authorised court along with—

(i)  an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and

(ii)  if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37—a copy of the terms of settlement, and

(b)  accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal.

…

22. Mr Gaynor, however, contends that s 34B(2)(c) is not met because, he contends, the Tribunal would not otherwise have jurisdiction to determine Mr Burns’ application. The various basis on which he asserts that the Tribunal would not have had jurisdiction, absent lack of conferral of federal jurisdiction upon it, are set out in his summons in the Judicial Review Proceedings. In summary, this includes the argument that since Mr Gaynor is a resident of Queensland, the President of the Anti-Discrimination Board had no power to investigate Mr Burns’ complaint or refer it to the Tribunal.

Application for interim relief – stay

23. After Mr Burns instituted the proceedings in the Tribunal, Mr Gaynor applied for them to be stayed pending the determination of the Judicial Review Proceedings. In effect, Mr Gaynor submitted that the Tribunal would not otherwise have jurisdiction to determine Mr Burns’ application and that that question will be determined in the Judicial Review Proceedings.

24. The Tribunal has the power under the Anti-Discrimination Act, s 105, to make interim orders on the application of either party to:

1. preserve the status quo between the parties to the complaint, or

2. preserve the rights of the parties to the complaint, or

3. return the parties to the complaint to the circumstances they were in before the alleged contraventions of the Anti-Discrimination Act, which are the subject of the complaint, were said to have occurred, pending determination of the matter as the subject of the complaint.

25. In his submissions, Mr Gaynor referred to the Tribunal’s power to order a stay of proceedings as being found in the Civil and Administrative Tribunal Act, s 26, in addition to the Anti-Discrimination Act, s 105. In that regard, the Civil and Administrative Tribunal Act, s 26, does not give the Tribunal any power to make a stay; it is a provision concerned with the making of practice and procedure directions by the President of the Tribunal. Instead, a stay is referred to as a defining example of an interlocutory decision of the Tribunal. The power to make interlocutory decisions arises under the Civil and Administrative Tribunal Act, s 29.

26. At common law, the purpose of interim relief, particularly by way of interim injunction, is to preserve the status quo of the parties pending the final determination of the matter; Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]. The right to such relief commonly lies in the need to ensure that a continuation of the alleged breach does not practically destroy the rights of one or other of the parties; ABC v Lenah Game Meats at [12].

27. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [18]-[19], the Appeal Panel considered the principles to be applied in determining whether or not to make an order under the Anti-Discrimination Act, s 105. The Appeal Panel said:

In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as:

. . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.

28. In Dhillon at [13], the Appeal Panel observed that interim orders should do the minimum necessary to ensure justice between the parties, as such orders are typically made pending a final determination of the proceedings.

29. In Dhillon at [19], the Appeal Panel noted that the power conferred on the Tribunal under the Anti-Discrimination Act, s 105 was not “at large”, but rather the power was limited to the making of orders relating to or affecting the statutory rights of the parties under the Anti-Discrimination Act.

30. There was no evidence before me that Mr Gaynor was continuing with the conduct on the subject of Mr Burns’ complaint. There was no allegation of continuing prejudice to Mr Burns arising from a continuation of the conduct that was the subject of his complaint. Likewise, it is not apparent to the Tribunal that Mr Gaynor is restricted from conducting his affairs in any manner he chooses. In those circumstances, aside from the fact that the Tribunal itself had entered a submitting appearance in the Judicial Review Proceedings, there was no apparent utility in the Tribunal making an order to stay in these proceedings.

31. In his application for a stay, Mr Gaynor makes the curious submission that he only seeks interim relief pending the determination of the Judicial Review Proceedings. In making that submission, there is no explanation as to why, when the sixth prayer for relief set out in his summons in the Judicial Review Proceedings expressly seeks dismissal of the proceedings, he is prejudiced by having the Tribunal proceedings dismissed forthwith as Mr Burns wishes.

32. Further, and with regard to the above passage in Dhillon, the Tribunal is concerned with ensuring that the processes that have been established to deal with complaints of unlawful victimisation are not rendered ineffective due to the conduct of one or other of the parties, including the finalisation of the proceedings. Mr Burns informed the Tribunal that he intended, after receiving sufficient evidence of the above matters required under Part 3A of the Civil and Administrative Tribunal Act, to determine that the Tribunal should approach the Local Court of New South Wales for relief.

33. The Tribunal does not exercise judicial power in considering whether it has jurisdiction or in staying or dismissing a matter even where, if the Tribunal proceeded to adjudicate on the final or substantive aspects of an application, it would fall into error. This is discussed in the reasons of both Basten JA and Leeming JA in Gaynor v Attorney-General of New South Wales, where their Honours noted that Burns v Corbett was concerned with whether a tribunal such as this Tribunal could have conferred on it federal judicial power as distinct from administrative or executive power exercised by other bodies:

1. At [97]-[99], Basten JA, after outlining the history and process of complaints under anti-discrimination legislation, stated:

A similar procedure was put in place under Commonwealth legislation and, in particular, the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). Complaints were referred to the Human Rights and Equal Opportunity Commission for hearing. Because the Commission was set up as a non-judicial tribunal, provision was made for its determinations to be registered in the Federal Court. The determination then had effect as a judgment of the Court, subject to review, and could be enforced as such if not set aside.

This scheme was successfully challenged in the High Court in Brandy v Human Rights and Equal Opportunity Commission [(1995) 183 CLR 245; [1995] HCA 10]. The Court held that the effect of the registration and enforcement provisions was to render the determination of the Commission an exercise of judicial power. Those provisions were therefore declared invalid. There was no doubt from the statutory language that the intention was to treat the whole of the functions of the Commission as an exercise in executive power. There was no suggestion that any stage in the process before the Commission was invalid, so long as the outcome was not to impose an order binding a defendant.

By the same reasoning, there is no reason to characterise any aspect of the process prior to the exercise by NCAT of its functions as involving judicial power.

2. And at [138], Leeming JA stated:

… there can be no contravention of the constitutional implication if the President of the Board exercises some non-judicial function (such as investigating or attempting conciliation), or if the NCAT exercises an administrative function (such as consolidating a number of referrals). What matters for the purposes of Chapter III of the Constitution is the exercise of federal judicial power. The further aspects of the legislative scheme involving non-judicial power on which Mr Gaynor relied do not assist him.

34. Ultimately, however, the central reason for Mr Gaynor’s stay application has subsided: by reasons published on 12 March 2025, the Judicial Review Proceedings, in which Mr Gaynor had sought, among other prayers for relief, that these proceedings be dismissed, were determined.

35. The Court, in Gaynor v Burns [2025] NSWSC 185, dismissed the summons and ordered costs be payable by Mr Gaynor against the Attorney-General of New South Wales. In dismissing Mr Gaynor’s summons, N Adams J found, at [106] that :

I am satisfied that the President of the ADB is not required to decide, at the stage of determining whether to accept a complaint under s 89B or at the stage of determining whether to refer a complaint under s 93C, whether or not there was a public act in NSW, amounting to a jurisdictional fact as a precondition to jurisdiction. Rather, the President’s function under Part 9, Division 2 of the AD Act is to conduct “an initial sifting process” or to “filter” complaints. It is a matter for the body exercising judicial power (whether NCAT or an “authorised court” under Part 3A of the NCAT Act) to determine whether there was a public act in NSW, and whether that is the necessary criterion to establish jurisdiction under the AD Act.

36. Since the Judicial Review Proceedings have been determined, I can see no proper reason for granting a stay of these proceedings. The application for stay is refused.

Substantive Application – Dismissal

37. There was no dispute that Mr Burns and Mr Gaynor reside in different States of the Commonwealth and that the determination of the substance of Mr Burns’ claim under the Anti-Discrimination Act would involve the impermissible exercise of federal jurisdiction by the Tribunal.

38. As he explained at the first directions hearing, Mr Burns comes to the Tribunal for the purpose of establishing to a court that:

1. pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 34B(2)(a) he has first made an application to the Tribunal;

2. pursuant to the Civil and Administrative Tribunal Act, s 34B(2)(b) the determination of his application would involve an exercise of federal jurisdiction; and lastly,

3. pursuant to the Civil and Administrative Tribunal Act, s 34B(2)(c), the Tribunal would otherwise have jurisdiction to determine his application.

39. The parties appear to agree that the matters under s 34B(2)(a) and s 34B(2)(b) are met in this case. Indeed, even if there were some dispute about those matters, the Tribunal would have been empowered to determine those questions as part of its first duty to establish the question of jurisdiction: Gaynor v Attorney General of New South Wales at [134]-[137].

40. I note that in the published reasons for dismissing the Judicial Review Proceedings, N Adams J also noted in Gaynor v Burns [2025] NSWSC 185 at [112] that:

Although the plaintiff initially submitted, as an additional argument, that it was futile for the matter to be referred to NCAT (because it is common ground that NCAT does not have the jurisdiction to hear this complaint), the plaintiff ultimately accepted, putting the extraterritorial argument to one side, that the only way that Mr Burns could have his complaint heard in the Local Court was to commence it with the ADB and have it rejected by NCAT.

41. Accordingly, I am satisfied that the proceedings should be dismissed because of want of jurisdiction.

42. In dismissing the proceedings, the Tribunal expressly declines to determine whether Mr Burns would meet the requirements pursuant to the Civil and Administrative Tribunal Act, s 34B(2)(c). It is apparent from a plain reading of s 34B(2) as a whole that those matters are to be considered by the court to whom an applicant applies subsequent to the dismissal of an application. The Tribunal has nothing to do in that regard.

Orders

43. I make the following orders:

1. The respondent’s application for a stay is refused.

2. The proceedings are dismissed for want of jurisdiction.

**********

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.

Registrar

Decision last updated: 14 March 2025