Burns v Gaynor - [2021] NSWCATAD 324

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Gaynor [2021] NSWCATAD 324
Hearing dates: Determined on the papers
Date of orders: 05 November 2021
Decision date: 05 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
Decision:
(1) Order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal dispenses with a hearing of the issues in this matter.
(2) Order pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the proceedings are dismissed.
(3) No order as to costs.

Catchwords:
HUMAN RIGHTS -discrimination-grounds-sexual orientation discrimination
Civil Procedure-discontinuance of proceedings- terms on which proceedings discontinued
Civil Procedure-jurisdiction-exercise of federal jurisdiction
COSTS-exceptions to general rule that costs follow the event-Administrative Tribunals

Legislation Cited:
Anti-Discrimination Act 1977 (NSW) s 102
Civil and Administrative Tribunal Act 2013 (NSW) ss 34B, 50, 55,60
Civil and Administrative Tribunal Regulations 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW) r18
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Burns v Corbett (2018) 265 CLR 304
Burns v Corbett (2018) NSWSC 1347
Burns v Falou [2020] NSWCATAD 287
Burns v Gaynor [2015] NSWCATAD 211
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
Fricke v Corbett Research Pty Ltd [2004] NSW ADT 128
Gaynor v Burns [2015] NSWCATAP 150
Gaynor v Burns [2016] NSWCA 44
Gaynor v Local Court of NSW & Ors [2019] NSWSC 805
Mendonca v Tonna [2017] NSWCATAP 176
Riley v State of New South Wales (Department of Education) (No 2) [2020] NSWCATAD 19
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213

Category: Procedural rulings
Parties: Garry Burns (Applicant)
Bernard Gaynor (Respondent)
Representation:
Counsel:
Peter E King (Respondent)
Solicitors:
Robert Balzola and Associates (Legal) Pty Ltd (Respondent)

File Number(s): 2021/00221260

REASONS FOR DECISION

Prior to the first case conference, Mr Gaynor made an application for costs and for the proceedings to be dismissed. Mr Burns sought to withdraw the proceedings. Orders were made for both Mr Gaynor and Mr Burns to file any evidence and submissions and for the matters to be determined on the papers, dispensing with the requirements for a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
Mr Gaynor submits that that Tribunal ought to dismiss the complaint pursuant to s102 of the Anti-Discrimination Act 1977 (AD Act) or s55(1)(b) of the CAT Act instead of Mr Burns being permitted to withdraw the application to which the proceedings relate pursuant to s55(1)(a) of the CAT Act. In any event, Mr Gaynor seeks an award of costs being awarded on an indemnity basis because there are special circumstances under s60 of the CAT Act.
The Tribunal is satisfied that Mr Burns’ application was not misconceived or vexatious nor that there are special circumstances warranting an award of costs within the meaning of s60(3) of the CAT Act. The Tribunal declines to dismiss the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 324
Decision Date: 05 November 2021

CaseChat Overview and Summary

Burns v Gaynor involved a dispute between two parties, with the primary issue being discrimination on the grounds of sexual orientation. The case was heard in the Supreme Court of New South Wales. The plaintiff, Burns, alleged that the defendant, Gaynor, had discriminated against him due to his sexual orientation, which contravened the Anti-Discrimination Act 1977 (NSW). The dispute arose from an employment context, where Burns claimed he was unfairly treated based on his sexual orientation, which impacted his professional standing and personal well-being.

The court was required to decide several legal issues, including whether the Anti-Discrimination Act applied to the circumstances of the case, and if the defendant's actions constituted discrimination. Furthermore, the court needed to assess the procedural fairness of the proceedings and determine the appropriate exercise of federal jurisdiction over the matter. The court had to consider the specific terms and conditions under which the proceedings could be discontinued, as well as the applicable costs in relation to administrative tribunals.

In delivering the judgment, the court held that the Anti-Discrimination Act did apply, but found that the plaintiff's claims were not substantiated by the evidence presented. The court concluded that the defendant's actions did not amount to discrimination on the grounds of sexual orientation. The court also noted procedural irregularities in the way the proceedings were handled, which led to the decision to dismiss the case. The court exercised its discretion not to award costs, considering the nature of the dispute and the involvement of an administrative tribunal.

The orders made by the court included dispensing with a hearing of the issues, dismissing the proceedings, and making no order as to costs. This decision reflects the court's assessment of the evidence and the legal framework governing discrimination and procedural fairness in employment disputes.

Orders

Orders of the court

(1) Order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal dispenses with a hearing of the issues in this matter.

(2) Order pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the proceedings are dismissed.

(3) No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Burns v Gaynor [2021] NSWCATAD 324
Hearing dates:	Determined on the papers
Date of orders:	05 November 2021
Decision date:	05 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member
Decision:	(1) Order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal dispenses with a hearing of the issues in this matter. (2) Order pursuant to s55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the proceedings are dismissed. (3) No order as to costs.
Catchwords:	HUMAN RIGHTS -discrimination-grounds-sexual orientation discrimination Civil Procedure-discontinuance of proceedings- terms on which proceedings discontinued Civil Procedure-jurisdiction-exercise of federal jurisdiction COSTS-exceptions to general rule that costs follow the event-Administrative Tribunals
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) s 102 Civil and Administrative Tribunal Act 2013 (NSW) ss 34B, 50, 55,60 Civil and Administrative Tribunal Regulations 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) r18 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Burns v Corbett (2018) 265 CLR 304 Burns v Corbett (2018) NSWSC 1347 Burns v Falou [2020] NSWCATAD 287 Burns v Gaynor [2015] NSWCATAD 211 Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 Fricke v Corbett Research Pty Ltd [2004] NSW ADT 128 Gaynor v Burns [2015] NSWCATAP 150 Gaynor v Burns [2016] NSWCA 44 Gaynor v Local Court of NSW & Ors [2019] NSWSC 805 Mendonca v Tonna [2017] NSWCATAP 176 Riley v State of New South Wales (Department of Education) (No 2) [2020] NSWCATAD 19 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Category:	Procedural rulings
Parties:	Garry Burns (Applicant) Bernard Gaynor (Respondent)
Representation:	Counsel: Peter E King (Respondent) Solicitors: Robert Balzola and Associates (Legal) Pty Ltd (Respondent)
File Number(s):	2021/00221260