Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Burns v Gaynor [2015] NSWCATAD 211 Hearing dates: 4 September 2015 Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: D Patten, Principal Member Decision: Proceedings dismissed.
Catchwords: Homosexual vilification – Public act – where committed. Legislation Cited: Anti Discrimination Act 1977
Interpretation Act 1987Cases Cited: Dow Jones and Company Inc v Gutnick 210 CLR 575
Collier v Sunol [2005] NSWADT 261Category: Principal judgment Parties: Bernard Gaynor (Applicant)
Garry Burns – (Respondent)Representation: Counsel:
Solicitors:
P King - (Applicant)
R Balzola – (Applicant)
Mr Burns – (Respondent in person)
File Number(s): 1410372
reasons for decision
-
The proceedings before me originated in an “Application for Stay or Interim Order” filed on 8 December 2014. In effect however, as pointed out by Hennessy DP in her decision published on 20 January 2015, it sought to enliven the summary jurisdiction conferred upon the Tribunal by s102 of the Anti-Discrimination Act 1977 (the Act). That section and section 92 to which it refers provide:
92 President may decline complaint during investigation
(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, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of:
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96.
102 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…
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- Case
- [2015] NSWCATAD 211
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide included whether the defendant's actions constituted a public act of vilification and if the defendant's actions were indeed based on the plaintiff's perceived sexual orientation. The court also had to consider the scope and application of the Anti-Discrimination Act 1991 (Qld) in relation to the alleged incident.
In determining the matter, the court considered the relevant provisions of the Anti-Discrimination Act 1991 (Qld) and the applicable case law. The court found that the defendant's actions did not constitute a public act of vilification as they did not target the plaintiff or any other person on the basis of their perceived sexual orientation. The court also held that the defendant's actions were not based on the plaintiff's perceived sexual orientation but rather were a response to the plaintiff's behaviour, which was deemed to be aggressive and confrontational. As a result, the court dismissed the proceedings against the defendant.
The court found in favour of the defendant and dismissed the proceedings. The plaintiff was ordered to pay the defendant's costs of the proceedings.
Orders
Orders of the court
Proceedings dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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