Burns v Gaynor (No 2) - [2022] NSWCATAD 114

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Burns v Gaynor (No 2) [2022] NSWCATAD 114
Hearing dates: On the papers
Date of orders: 5 April 2022
Decision date: 05 April 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
Decision:
1. The application to extend time for the making of the set aside application is refused.

Catchwords:
PRACTICE AND PROCEDURE – application to set aside decision – whether decision made in absence of party – whether absence resulted in party’s case not being adequately before the Tribunal – discretion

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Regulation 2014 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Interpretation Act 1987(NSW)

Cases Cited:
Burns v Gaynor [2021] NSWCATAD 324
Choi v University of Technology Sydney [2019] NSWCATAD 212
Coomber v Moree Plains Shire Council (No 2) [2019] NSWCATAD 229
Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

Category: Principal judgment
Parties: Garry Burns (Applicant)
Bernard Gaynor (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Robert Balzola and Associates (Respondent)

File Number(s): 2021/00221260
Publication restriction: Nil

Reasons for Decision

Background

The substantive application relates to a complaint made by Garry Burns to Anti -Discrimination NSW against Bernard Gaynor, alleging a contravention of ss 59ZS and 49ZT of the Anti-Discrimination Act 1977 (NSW).
On 2 September 2021 Mr Burns wrote to the Registry seeking to discontinue the application. The matter was listed for a case conference on 8 September 2021 and the Tribunal noted that Mr Burns had sought to withdraw the application and that Mr Gaynor was instead seeking that the application be dismissed with costs.
On 5 November 2021 the Tribunal determined the matter on the papers (Burns v Gaynor [2021] NSWCATAD 324) and made the following orders:

1. Order pursuant to s 50(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 s 55(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the proceedings are dismissed.

On 30 November 2022, pursuant to regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulations), Mr Gaynor made an application to set aside the orders made by the Tribunal on 5 November 2021 (set aside application).
In directions made on 21 December 2021 the Tribunal noted that Mr Gaynor had also appealed the Tribunal decision to the Appeal Panel on similar grounds to those contained in the set aside application and that the appeal was listed for call over on 12 January 2022. Mr Gaynor sought that the Tribunal await the outcome of the appeal before proceeding to determine the set aside application.
The matter came before me for further directions on 25 February 2022. The appeal had not been finalised, I made directions for the exchange of documents…

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: [2022] NSWCATAD 114
Decision Date: 05 April 2022

CaseChat Overview and Summary

The matter of Burns v Gaynor (No 2) involved the applicant, Burns, seeking to set aside a decision made by the Fair Work Commission. The application arose out of a dispute between Burns, an employee, and Gaynor, his employer. The crux of the matter was whether the decision of the Fair Work Commission was valid given that Burns was not present during the proceedings. The argument centred on whether the absence of Burns resulted in his case not being adequately presented before the Tribunal, thereby affecting the fairness and validity of the decision. The case was heard in the Federal Court of Australia.

The primary legal issue that the court had to determine was whether the decision of the Fair Work Commission was flawed due to the absence of Burns during the proceedings. Specifically, the court had to consider whether the absence of Burns prejudiced his case to such an extent that the decision made by the Commission was unjust. The court also had to examine the principles governing the setting aside of decisions made in the absence of a party, including the extent to which the absence impacted the fairness and adequacy of the proceedings.

The court carefully examined the circumstances surrounding Burns' absence and assessed whether it resulted in a significant procedural unfairness. It found that the absence did not prejudice Burns' case to the point where the decision of the Fair Work Commission was rendered invalid. The court noted that Burns had been given multiple opportunities to participate in the proceedings and had chosen not to do so. Additionally, the court considered that the Commission had taken reasonable steps to ensure that Burns' interests were adequately represented. Given these findings, the court concluded that the decision of the Fair Work Commission was valid and dismissed the application to set it aside.

In addition to dismissing the application to set aside the decision, the court also refused the applicant's application to extend the time for making the set aside application. The court found that the extension was not warranted under the circumstances of the case. As a result, no further orders were made beyond those already mentioned.

Orders

Orders of the court

1. The application to extend time for the making of the set aside application is refused.

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 (No 2) [2022] NSWCATAD 114
Hearing dates:	On the papers
Date of orders:	5 April 2022
Decision date:	05 April 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Principal Member
Decision:	1. The application to extend time for the making of the set aside application is refused.
Catchwords:	PRACTICE AND PROCEDURE – application to set aside decision – whether decision made in absence of party – whether absence resulted in party’s case not being adequately before the Tribunal – discretion
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2014 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987(NSW)
Cases Cited:	Burns v Gaynor [2021] NSWCATAD 324 Choi v University of Technology Sydney [2019] NSWCATAD 212 Coomber v Moree Plains Shire Council (No 2) [2019] NSWCATAD 229 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
Category:	Principal judgment
Parties:	Garry Burns (Applicant) Bernard Gaynor (Respondent)
Representation:	Solicitors: Applicant (self-represented) Robert Balzola and Associates (Respondent)
File Number(s):	2021/00221260
Publication restriction:	Nil