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

1. 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).

2. 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.

3. 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 complaint pursuant to s102 of the AD Act.

Background and procedural history

4. On 21 January 2021, Mr Burns made a complaint to Anti-Discrimination NSW (ADNSW) against Mr Gaynor, alleging a contravention of ss 49ZS and 49ZT of the AD Act.

5. The substance of Mr Burns’ complaint is that on or about 20 January 2021, Mr Gaynor, on his Facebook page, hosted a hyperlink from a third party (post), which contained materials that amounted to homosexual vilification. Mr Burns further alleged that Mr Gaynor was a moderator of his Facebook page and that he failed to moderate the post.

6. Mr Burns claims that the hyperlink posted on Mr Gaynor’s Facebook page links to material linking homosexuality and homosexuals with deviant sexual practices, the sexual abuse of boys and to paedophilia, and that the material also refers to homosexuality as being a psychological and psychiatric disorder and homosexuals being a danger to the community at large.

7. On 23 February 2021, ADNSW wrote to Mr Gaynor to notify him of the complaint and to a request a response to the allegations. No response was received by the due date. In response to a follow-up letter from the ADNSW, Mr Gaynor responded on 24 May 2021 that “If the President of the ADB requires me to respond to the complaint, she should exercise her powers under section 90B of the Anti-Discrimination Act 1977 (NSW).”

8. On 29 July 2021, the ADNSW complaint was referred to this Tribunal pursuant to s93C(a) of the AD Act as the President was of the view that the complaint could not be resolved by conciliation.

9. On 5 August 2021, the Tribunal issued a notice of listing for a case conference on 8 September 2021.

10. On 31 August 2021, Mr Gaynor filed an interlocutory application seeking that the Tribunal make the following orders:

1. Dismissal of complaint per s55(1)(b) of the Civil and Administrative Tribunal Act 2013 proceedings are misconceived

2. Dismissal of complaint per s102 of the Anti-Discrimination Act 1977

3. Costs

11. The interlocutory application was filed together with an affidavit of Mr Bernard Gaynor sworn on 30 August 2021. Mr Balzola, solicitor for Mr Gaynor, asked the Tribunal to issue a sealed copy of the interlocutory application for service on Mr Burns.

12. On 1 September 2021, Mr Burns sent an email to the Tribunal that included the following words:

Case number 2021/00221260

Subject: Applicant Garry Burns discontinues with his complaint against Mr Gaynor

Dear Registry,

The Applicant Gary Burns refers to the above case number and case conference listing scheduled for Wednesday 8 September 2021 at 12:30PM to be conducted by telephone.

The Applicant Gary Burns advises the Registry that he wishes to discontinue wholly the above proceedings against Mr Gaynor.

Could the Registry please confirm in writing by return mail to the Applicant that it has received this email and will inform the Judicial Officer conducting the case conference on Wednesday 8 September 2021 of the complainant’s discontinuance of his complaint against Mr Gaynor?

Could the Registry also notify the Respondent Bernard Gaynor at [email address]?

13. On 2 September 2021, the Tribunal issued directions to the parties that included the following words:

Request to withdraw

The Applicant has made a request to withdraw the application.

The Respondent should advise the Tribunal by close of business 6 September 2021 if they have any objection to the matter being withdrawn and to make any other submissions about the request to withdraw.

Both parties should also make any submissions about whether they object to an order being made dispensing with a hearing or if they consent to the application being dealt with on the papers (see section 50(2) of the Civil And Administrative Tribunal Act 2013). Submissions on this issue must be lodged with the Tribunal and given to the other party by close of business 6 September 2021.

Written notice of the outcome of the request will be sent to all parties to the proceedings.

14. On 2 September 2021, Mr Burns sent correspondence to the Tribunal stating:

Correspondence from NCAT dated to September 2021 in relation to the Applicant’s discontinuance of proceedings

Dear Registry,

The Applicant Gary Burns does not wish to proceed with the matter against Mr Gaynor due to an ongoing health issue.

The Applicant does not object to an order being made without a hearing or consent to the application being dealt with on the papers, section 50(2) CATA 2013.

15. Mr Burns claims that he received a copy of the interlocutory application on 3 September 2021.

16. Pursuant to the directions made on 2 September 2021, on 5 September 2021 Mr Gaynor filed a second interlocutory application form referring to the interlocutory application filed on 31 August 2021 together with written submissions. Mr Gaynor’s second interlocutory application sought the same orders as set out in the interlocutory application.

17. On 8 September 2021, the parties attended a case conference and orders were made by consent that Mr Burns file and serve all documents on which he relies in seeking to withdraw the complaint and, in response to Mr Gaynor’s application that the complaint be dismissed with costs and, by 13 October, Mr Gaynor to provide any reply. The parties also agreed that the request of Mr Burns to withdraw the matter and the orders sought by Mr Gaynor in the interlocutory application including costs be determined on the papers after 13 October 2021 dispensing with a hearing. On 8 September 2021, Mr Burns filed submissions. Mr Gaynor did not file any submissions in reply.

18. I am satisfied, as required by s50(2) of the CAT Act, that the application for costs can be determined by considering the written submissions and other material filed in the Tribunal. A determination of this issue ‘on the papers’ is consistent with a ‘just quick and cheap’ resolution of the real issues in dispute as set out in s36(1) of the CAT Act.

Mr Gaynor’s evidence and submissions

Mr Gaynor’s evidence

19. As referred to above, Mr Gaynor relies on his affidavit sworn on 30 August 2021 in which he admitted that he is the owner and controller of the Facebook page as claimed by Mr Burns, and that a hyperlink was posted as alleged by Mr Gary Blyth approximately 18 months before the complaint to the ADNSW with the words “supports bernard (sic) Gaynor” in response to a comment by him on 6 December 2018. Mr Gaynor says that the Facebook account is administered from Queensland and is connected via a telephony account to his residential address in Queensland.

20. Mr Gaynor says that the materials provided by Mr Burns to the ADNSW were not materials from the hyperlink and, in any event, it appears that Mr Blyth’s website is operated from Brisbane.

21. Mr Gaynor believes that Mr Burns had only lodged the complaint against him in order to improperly use the processes under the Anti-Discrimination Act to cause him vexation and to maliciously cause him financial harm due to the costs he faces in defending himself against this trivial complaint. Mr Gaynor says that he is not the publisher of the material that can be accessed by Mr Blyth’s hyperlink and says further that, as found in Burns v Gaynor [2015] NSWCATAD 211, the Tribunal has no jurisdiction under the AD Act.

Mr Gaynor’s submissions

Federal diversity argument

22. Mr Gaynor relies on the decision in Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 (Wilson) to submit that the Tribunal has power to dismiss proceedings and award costs in federal diversity proceedings.

Dismissal of proceedings

23. Counsel for Mr Gaynor submitted that the withdrawal request by Mr Burns should be rejected by the Tribunal, first because he has not specified or substantiated his ongoing health issue. Secondly, that Mr Burns has other proceedings continuing in the Local Court.

24. Mr Gaynor submitted that a matter should be dismissed as misconceived and or vexatious. As to the matter being misconceived, Mr Gaynor relies on the decision in Burns v Gaynor [2015] NSWCATAD 211 and points out that the parties to those proceedings are the same as in those proceeding.

25. As to the matter being vexatious, Mr Gaynor refers to 16 proceedings from 2014 to 2020 in which the applicant has withdrawn or has referred the proceedings to the Local Court and ‘abandoned’.

26. The submissions make reference to an offer of settlement from Mr Burns and it is suggested that frequent use of this Tribunal and the AD Act to bring large numbers of complaints against Mr Gaynor are made for a collateral purpose which is an abuse of process and vexatious as Mr Burns has no intention of pursuing the matters against Mr Gaynor.

27. Reference is made to Burns v Falou [2020] NSWCATAD 287 where this Tribunal found that Mr Burns commenced vexatious complaints against Mr Falou for the collateral purpose of obtaining a financial settlement to fund unrelated legal proceedings.

28. Mr Gaynor disputes that Mr Burns only received his application for costs following his decision to withdraw the proceedings.

Costs

29. Counsel for Mr Gaynor submits that there are special circumstances under section 60 of CAT Act in that Mr Burns has conducted these proceedings in a way that unnecessarily disadvantages Mr Gaynor by commencing proceedings for the eighteenth time against him without an intention to pursue it. Mr Gaynor points to Mr Burns failing to serve any application on him in the Local Court proceedings.

30. Mr Gaynor is critical of Mr Burns for failing to file and serve any evidence of his unspecified and substantiated medical condition when it arose, its nature and any likelihood that it may resolve in the foreseeable future. Mr Gaynor says that this conduct is causing him to waste costs in preparing a motion, seeking to have this matter dismissed for reasons that this Tribunal has already found and of which Mr Burns is already well aware.

31. The submissions assert that Mr Burns has potentially conducted these proceedings in a way that unnecessarily prolonged them by failing to provide any evidence of when his medical condition first arose and failing to withdraw it earlier and says that it is entirely conceivable that Mr Burns was aware of his medical condition prior to the referral of this matter to this Tribunal by ADNSW.

32. Mr Gaynor submits that the allegation was entirely frivolous and falsely claimed that the comment left on his Facebook page directly linked to third party publications that Mr Burns claims vilified homosexuals and that the application was bought for a collateral purpose based on Mr Burns’ history of lodging vexatious complaints and commencing proceedings against him only to later abandoned them. It is submitted that costs be awarded on an indemnity basis.

33. Mr Gaynor’s submissions as to costs do not refer to any specific subsection of s60 of the CAT Act but assert the following:

1. Mr Burns conducted these proceedings in a way that unnecessarily disadvantaged Mr Gaynor by:

1. Commencing 17 other proceedings against Mr Gaynor without an intention to pursue them;

2. Failing to serve an ‘application’ to withdraw the proceedings;

3. Failing to serve evidence as to why he was withdrawing the proceedings;

4. Knowing that the Tribunal did not have jurisdiction prior to the commencement of these proceedings.

2. The allegation was frivolous and false as the complaint related to a hyperlink posted by a third party on Mr Gaynor’s Facebook page.

3. The proceeding was brought for collateral purpose and as such is vexatious and misconceived.

Applicant’s submissions

Federal diversity argument

34. Mr Burns’ claims that had the proceedings continued, he would have sought leave under Part 3A of the CAT Act to make the application to an authorised court under section 34B of the CAT Act for determination of the application as it involves federal jurisdiction. Mr Burns submits that he would not have invited the Tribunal to hear and determination the application because it involved federal jurisdiction.

Dismissal of proceedings

35. Mr Burns seeks to withdraw the proceedings consistent with his written communications with the Tribunal on 2 September 2021.

Costs

36. In large part, Mr Burns’ submission is that the costs incurred by Mr Gaynor were of his own making, as of 2 September 2021, he had notified the Tribunal and Mr Gaynor’s solicitor but he was seeking to withdraw the proceedings. Mr Burns submits that he sought to withdraw the proceedings prior to the receipt of Mr Gaynor’s application on 8 September 2021.

37. As to s60 CAT Act, Mr Burns says that there are no special circumstances. Mr Burns submits that that he is ‘running these proceedings in the public interest’ and refers to Campbell J’s judgement in Burns v Corbett (2018) NSWSC 1347.

38. As to the Tribunal’s jurisdiction, Mr Burns submits that the Tribunal is unable to dismiss the application as being misconceived because the Tribunal at first instance had not been put in a position to deny its jurisdiction to hear the claims, as he was not given an opportunity to be heard.

Relevant legislation

39. Section 34B of the CAT Act is in the following terms:

“34B Applications or appeals involving federal jurisdiction may be made to authorised court

(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.

(4) If an appeal is made under this Act in relation to any matter in issue in the application or appeal:

(a) for an appeal lodged before the application for leave is made to an authorised court – the court cannot grant leave unless and until the appeal is determined, or

(b) for an appeal lodged on or after leave is granted by an authorised court – proceedings in the court concerning the application or appeal are stayed until the appeal made under this Act is determined.

(5) An authorised court may remit an application or appeal to the Tribunal to determine the application or appeal if the court is satisfied that the Tribunal has jurisdiction to determine it. The court may do so instead of granting leave or after granting leave.

(6) An authorised court that remits an application or appeal to the Tribunal may make such orders that it considers appropriate to facilitate the determination of the application or appeal by the Tribunal.

(7) The Tribunal is to determine any application or appeal that is remitted to it in accordance with any orders made by the authorised court.

(8) The following provisions apply if the authorised court is the District Court:

(a) the District Court may grant leave and then transfer the proceedings on the application or appeal to the Local Court in accordance with the provisions of Division 2 (Transfer of proceedings from higher to lower court) of Part 9 of the Civil Procedure Act 2005,

(b) if a transfer order is made under that Division, this Part applies to the proceedings as if the Local Court had granted leave for the application or appeal to be made to it instead of the Tribunal.”

40. Section 55 of the CAT Act provides:

55   Dismissal of proceedings

(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

41. Section 60 of the CAT Act is in the following terms:

60   Costs

(1)  Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2)  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3)  In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)  the nature and complexity of the proceedings,

(e)  whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f)  whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)  any other matter that the Tribunal considers relevant.

(4)  If costs are to be awarded by the Tribunal, the Tribunal may—

(a)  determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act (2014) or on any other basis.

(5)  In this section—

costs includes—

(a)  the costs of, or incidental to, proceedings in the Tribunal, and

(b)  the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

42. Section 92(1) of the ADA Act states:

(1) If at any stage of the President’s investigation of a complaint—

(a) the President is satisfied that—

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject matter of the complaint has been, is being or should be dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

43. Section 93C of the ADA Act is in the following terms:

93C OTHER REFERRAL OF COMPLAINTS TO TRIBUNAL

If the President--

(a) is of the opinion that a complaint cannot be resolved by conciliation, or

(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or

(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, or

(d) is satisfied that all parties wish the complaint to be referred to the Tribunal and that it is appropriate in the circumstances to do so,

the President is to refer the complaint to the Tribunal.

44. Section 102 of the ADA Act is in the following terms:

102 The Tribunal may dismiss complaint

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

Consideration

Federal Diversity Jurisdiction

45. The parties agree that the proceedings raise federal diversity jurisdiction as Mr Gaynor resides in Queensland and as such is a citizen resident in a State other than New South Wales. The Tribunal does not have jurisdiction to determine such matters, it not being one of the “courts of the States” as referred to in s77 of the Commonwealth Constitution. Burns v Corbett (2018) 265 CLR 304 at [1] per Kiefel CJ, Bell and Keane JJ.

46. Mr Burns submits that the Tribunal cannot make a finding that the proceedings are misconceived on a s93C referral from the President because he has not invited the Tribunal to hear the proceedings and makes reference to s34B of the CAT Act.

47. Mr Gaynor submits, in reliance on Wilson [71]-[74] per White JA that the Tribunal “has inherent power to dismiss the proceedings as misconceived and vexatious and to award costs against the applicant.” White JA was in minority in finding that the Tribunal has power to award costs against an applicant in appropriate cases beyond issues that are incidental to the jurisdiction of the Tribunal.

48. In Wilson, the Court of Appeal dealt with an appeal from this Tribunal as to the Tribunal’s power to make two costs orders. The question was whether this Tribunal can order costs against an applicant after deciding that that it has no authority to decide the applicant’s claim because it raises a matter within federal jurisdiction.

49. Leeming JA, with whom Macfarlan JA agreed, held that the Tribunal does have power to order an applicant to pay the respondent’s costs that are incidental to the jurisdictional issue in appropriate cases: at [17] per Leeming JA.

Dismissal of proceedings s 102 AD Act

50. Section 102 permits the Tribunal to dismiss proceedings in circumstances where the President of the ADB decides to decline the complaint as lacking in substance pursuant to s92 of the AD Act. In this case the President of the ADB referred the complaint to the Tribunal pursuant to s93C of the AD Act. The President of the ADB did not decide that the complaint lacked in substance or any of the matters referred to in s92(1)(a)(i) or (ii) or (b) of the AD Act. Without assessing the merits of Mr Burns’ complaint, the Tribunal cannot determine whether the complaint is lacking in substance or the other matters referred to in s102 of the AD Act.

51. In Fricke v Corbett Research Pty Ltd [2004] NSW ADT 128 in addressing an application under s111 of the AD Act (as at 29 June 2004), a provision in similar effect to s102 of the AD Act, the Tribunal said at [37]-[38]:

The standard of satisfaction for a [strikeout] application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and in the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish...

The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest to show that there may be grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent’s evidence will be called.

52. In circumstances where both parties agree that the claim raises federal diversity issues and the undisputed facts clearly demonstrate that the application raises federal diversity issues, the Tribunal lacks jurisdiction to determine the controversy. Pursuant to s34B of the CAT Act, the application is to be determined by an authorised court.

Dismissal of proceedings s55 CAT Act

53. Mr Burns is not required to justify or a give a reason to withdraw an application to the Tribunal pursuant to s 55(1)(a) of the CAT Act. Unlike r12.1 of the Uniform Civil Procedure Rules 2005 NSW, Mr Burns does not require leave of the Tribunal or consent of each other active party to discontinue the proceedings. Pursuant to s 55(1)(a) of the NCAT Act, the proceeding is discontinued if the applicant withdraws the application to which the proceedings relate.

54. There is no ‘approved form’ as submitted by Mr Gaynor (see reg 18 of the Civil and Administrative Tribunal Rules 2014) or a particular set of words that Mr Burns must use to comply with s55(1)(a) of the NCAT Act.

55. As set out above, on 1 September 2021 and again on 2 September 2021, Mr Burns sought to discontinue the whole of these proceedings by withdrawing the application to which the proceedings relate pursuant to s 55(1)(a) of the CAT Act. I find that the words used by Mr Burns on 1 and 2 September 2021 clearly indicated that he wished to discontinue wholly the above proceedings against Mr Gaynor.

56. Mr Gaynor in his submission says that on 2 September 2021, he received a letter from Mr Burns and an email from the Tribunal notifying him that that Mr Burns ‘had made a request to withdraw these proceedings’. However, submits that he did not receive any general application or other application seeking orders to dismiss this matter due to his intention to withdraw it under s55(1)(a) of the CAT Act. Mr Gaynor in his submission asserts that he ‘objects’ to Mr Burns withdrawing the proceedings and submits that the Tribunal should reject Mr Burns’ withdrawal of the application to which these proceedings relate. Mr Gaynor makes these submissions in part because he seeks costs pursuant to s60 of the CAT Act on the basis that there are special circumstances. The two issues need to be dealt with separately.

57. Mr Gaynor submits that Mr Burns only decided to withdraw the these proceedings because he has made an interlocutory application to have the proceedings dismissed. Mr Burns denies that he was served with the interlocutory application prior to seeking to withdraw the proceedings. Mr Gaynor has not filed evidence as to when Mr Burns was served with the interlocutory application and Mr Gaynor’s submissions do not refer to any details as to how and when Mr Burns was served with the interlocutory application filed in the Tribunal on 31 August 2021.

58. Mr Burns asserts in his written submissions that he received the interlocutory application in the post on 3 September 2021. Regardless of whether Mr Burns received the interlocutory application before or after 1 September 2021 when he indicated that he sought to withdraw the application, Mr Gaynor claims that he is entitled to indemnity costs because the application was misconstrued or vexatious.

Costs

59. The starting position with s60 of CAT Act is that each party to proceedings in the Administrative and Equal Opportunity Division is to pay the party’s own costs. Where a departure from this position is sought, the onus is on the party to prove that there are ‘special circumstances’ by reference to the matters set out in s60(3). Riley v State of New South Wales (Department of Education) (No 2) [2020] NSWCATAD 19 [14].

60. In Gaynor v Burns [2015] NSWCATAP 150 at [19] the Appeal Panel of the Tribunal in reliance on Cripps v G&M Dawson [2006] NSWCA 81 explained that special circumstances are:

…circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.

61. Mr Gaynor submits one of the special circumstances is that Mr Burns has conducted these proceedings in a way that unnecessarily disadvantaged Mr Gaynor because he did not have an intention to pursue the application, failed to rely on specific evidence as to why he sought to withdraw the application and did not file an application to withdraw, causing Mr Gaynor to waste costs by making an interlocutory application.

62. There is no evidence before the Tribunal that Mr Burns had no intention to pursue the application. In fact, Mr Gaynor’s own submission points to eight applications Mr Burns is pursuing against Mr Gaynor in the Local Court.

63. Mr Burns submits that he had sought to proceed with his claim, he would have relied on s 34B of the CAT Act and would have sought for the matter to be determined by an authorised court. S34B(2) requires an application to be first made with the Tribunal. Mr Burns is a ‘person with standing to make an original application’ within the meaning of s34B(1) of CAT Act. Had Mr Burns not made the application to this Tribunal, he would have been unable to seek leave of an authorised court.

64. Mr Gaynor’s submission that Mr Burns’ submission is misconceived because of the decision in Burns v Gaynor [2015] NSWCATAD 211 fails to have regard to Part 3A of CAT Act which includes s34B. Part 3A of CAT Act was introduced in the Justice Legislation Amendment Act (No 2) 2017 No 44, coming into effect on 1 December 2017 as a consequence of the decision in the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 that this Tribunal cannot exercise federal diversity jurisdiction because it is not a court that is invested with such jurisdiction by the Judiciary Act 1903 (Cth).

65. Mr Gaynor, in his written submission, makes no reference to Part 3A of the CAT Act, or the decision in Gaynor v Local Court of NSW & Ors [2019] NSWSC 805. This is surprising as Mr Gaynor was a party to the proceeding in which he unsuccessfully challenged the constitutionality of Part 3A of CAT Act.

66. Mr Gaynor’s submission that Mr Burns’ application is misconceived because he knew that the respondent resided in Queensland and therefore involves federal diversity jurisdiction must be rejected because of s34B of the CAT Act.

67. As to the other submissions made by Mr Gaynor that costs should be awarded because Mr Burns has conducted these proceedings in a way that unnecessarily disadvantaged Mr Gaynor, as set out above, there is no requirement under the CAT Act or the CAT Regulation 2013 or CAT Rules 2014 for an applicant to rely on specific evidence in seeking to withdraw an application or to file an application to withdraw.

68. Mr Gaynor’s second submission as to costs is that Mr Burns’ claim has no basis in law fails to have regard to Part 3A of the CAT Act. The Tribunal also rejects the submission that Mr Burns’ case is entirely frivolous. Slurs of paedophilia and child abuse made against homosexual men are serious and bringing proceedings alleging homosexual vilification in contravention of ss49ZS and 49ZT of the AD Act is not frivolous. Numerous decisions have held that in certain circumstances a person who publishes a hyperlink is liable for it contents: Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350.

69. As Harrison J remarked in Gaynor v Local Court of NSW & Ors [2019] NSWSC 805 at [54]:

In regard to Burns v Gaynor [2015] NSWCATAD 211 Mr Patten’s decision on this issue would not prevent Mr Burns from commencing his several proceedings in the Local Court, where the public act question would undoubtedly arise again for consideration concerning the particular facts of the cases concerned. Neither the previous decision of the Tribunal in different proceedings nor the particular provisions of the Anti-Discrimination Act upon which Mr Gaynor relies operates to invalidate the subject Local Court proceedings on a jurisdictional or any other basis.

70. There is a factual dispute between Mr Gaynor and Mr Burns as to the content of the material linked to a post on Mr Gaynor’s Facebook page. This is beyond the scope of the matters before the Tribunal.

71. Mr Gaynor’s submission alleges that Mr Burns made the claims against him for collateral purpose. As I understand the submission, it is claimed that the collateral purpose is that Mr Burns has brought the proceedings for the purpose of pressuring Mr Gaynor to enter into a financial settlement with him in other proceedings. Reference in the submission is made to an offer of settlement received from Mr Burns on 6 May 2021 which offered to withdraw this current proceeding for financial settlement in matters currently before the Local Court. The submission concludes that this is an abuse of process and is vexatious.

72. Mr Gaynor filed an affidavit on 30 August 2021 but makes no reference to an offer to settle on 6 May 2021 or at any other time. No evidence of an offer to settle is before the Tribunal. An allegation of abuse of process is very serious and must be considered carefully. The Tribunal is not in a position to consider this issue as no evidence has been relied on by Mr Gaynor.

73. Mr Gaynor makes reference to the decision in Burns v Falou [2020] NSWCATAD 287, however there is no link to that case and the application currently before the Tribunal. As far as I understand Mr Gaynor’s submission, he submits that the Tribunal should accept that Mr Burns commenced vexatious complaints against him for the collateral purpose of obtaining a financial settlement to fund unrelated legal proceedings like he did against Mr Falou. However, there is no evidence before the Tribunal as to these allegations like there was before the Tribunal in Burns v Falou [2020] NSWCATAD 287.

74. In my view, the correct outcome in this case is that there be no order as to costs. I am not satisfied that special circumstances exist. Mr Gaynor’s submission that Mr Burns’ application is an abuse of process, vexatious and misconceived are rejected. In an application involving federal jurisdiction, an applicant is required to make an application to the Tribunal (see s34B(2)(a) of CAT Act) before seeking leave of an authorised court for it to consider the application.

75. Given the findings set out above it is not necessary to determine whether, if a cost order had been made, indemnity costs would have been ordered. However, the Tribunal finds that on the basis of the principle set out in Mendonca v Tonna [2017] NSWCATAP 176 at [59]-[64] it would not have been appropriate to order indemnity costs.

76. The Tribunal is not satisfied that Mr Burns conducted the proceedings in a way that was unnecessarily disadvantageous to Mr Gaynor or unreasonably prolonged the time to complete the proceedings or that the proceedings were frivolous or vexatious or misconceived or lacking in substance or otherwise amounts to a special consideration as set out in section 60(3) of the CAT Act.

Order

77. The Tribunal makes the following orders:

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.

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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: 05 November 2021