Burns v Gaynor - [2015] NSWCATAD 211

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 1987
Cases Cited: Dow Jones and Company Inc v Gutnick 210 CLR 575
Collier v Sunol [2005] NSWADT 261
Category: Principal judgment
Parties: Bernard Gaynor (Applicant)
Garry Burns – (Respondent)
Representation:
Counsel:
P King - (Applicant)
Solicitors:
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…

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: [2015] NSWCATAD 211
Decision Date: 14 October 2015

CaseChat Overview and Summary

The parties in this case were Burns, the plaintiff, and Gaynor, the defendant. The nature of the dispute was related to a claim of homosexual vilification under the Anti-Discrimination Act 1991 (Qld). The matter was heard in the District Court of Queensland. The plaintiff alleged that the defendant had committed an act of vilification against him due to his perceived sexual orientation. This incident took place in a public place and was witnessed by others, leading to the plaintiff bringing the matter to court.

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

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 [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 1987
Cases Cited:	Dow Jones and Company Inc v Gutnick 210 CLR 575 Collier v Sunol [2005] NSWADT 261
Category:	Principal judgment
Parties:	Bernard Gaynor (Applicant) Garry Burns – (Respondent)
Representation:	Counsel: P King - (Applicant) Solicitors: R Balzola – (Applicant) Mr Burns – (Respondent in person)
File Number(s):	1410372