Burns v Gaynor

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Burns v Gaynor [2015] NSWCATAD 24
Hearing dates:	20 January 2015
Decision date:	20 January 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The applicant’s application that the complaints be summarily dismissed is refused.
Catchwords:	ANTI-DISCRIMINATION – homosexual vilification – application for summary dismissal – frivolous, vexatious or lacking in substance – whether conduct by respondent means that purpose of proceedings is to annoy or harass applicant
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Crewdson v Niland (EOD) [2002] NSWADTAP 5 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Langley v Niland [1981] 2 NSWLR 104 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 6/3/98
Category:	Principal judgment
Parties:	Bernard Gaynor (Applicant) Garry Burns (Respondent)
Representation:	Solicitors: Robert Balzola and Associates (Applicant) G Burns (Respondent in person)
File Number(s):	1410372

Judgment

Interlocutory

1. DEPUTY PRESIDENT: I am going to make a decision. The decision is that I refuse the application to dismiss the proceedings on the grounds that they are frivolous, vexatious or lacking in substance.

2. Although the application identified six orders under various statutory provisions, Mr Gaynor’s solicitor agreed at the commencement of the hearing that the only provision under which this Tribunal has jurisdiction to make the kind of order he sought is s 102 of the Anti- Discrimination Act 1977 (NSW). That provision allows the Tribunal to dismiss at any stage of proceedings a complaint on the same grounds that the President of the Anti-Discrimination Board may dismiss it under various subsections of s 92, including that the complaint is frivolous, vexatious, misconceived or lacking in substance.

3. Mr Burns has brought three complaints of homosexual vilification against Mr Gaynor. Those complaints were referred by the President of the Anti-Discrimination Board to the Tribunal. He has filed Points of Claim, a statement and submissions in relation to those complaints. The task of the Tribunal today is to determine whether any of those complaints or parts of the complaints should be dismissed because they are frivolous, vexatious, misconceived or lacking in substance.

4. It became evident during oral submissions that Mr Gaynor’s main point was that the complaints should be dismissed as frivolous or vexatious because their purpose is to annoy and harass rather than having any bona fide purpose under the Anti-Discrimination Act. I will also deal in these reasons with submissions that the complaints lack substance.

5. The general principles to be applied are that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30; Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 at [34]. The applicant’s case is to be…