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