Burns v Gaynor & Ors - [2017] HCATrans 136

[2017] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S41 of 2017

B e t w e e n -
GARRY BURNS
Applicant
and
BERNARD GAYNOR
First Respondent
CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES
Second Respondent
STATE OF NEW SOUTH WALES
Third Respondent
ATTORNEY GENERAL FOR NEW SOUTH WALES
Fourth Respondent
ATTORNEY‑GENERAL FOR COMMONWEALTH
Fifth Respondent

Office of the Registry
Sydney No S42 of 2017

B e t w e e n -
GARRY BURNS
Applicant
and
TESS CORBETT
First Respondent
ATTORNEY GENERAL FOR NEW SOUTH WALES
Second Respondent
ATTORNEY‑GENERAL FOR COMMONWEALTH
Third Respondent

Office of the Registry
Sydney No S43 of 2017

B e t w e e n -
ATTORNEY GENERAL FOR NEW SOUTH WALES
Applicant
and
GARRY BURNS
First Respondent
TESS CORBETT
Second Respondent
ATTORNEY‑GENERAL FOR THE COMMONWEALTH
Third Respondent

Office of the Registry
Sydney No S44 of 2017

B e t w e e n -
ATTORNEY GENERAL FOR NEW SOUTH WALES
Applicant
and
GARRY BURNS
First Respondent
BERNARD GAYNOR
Second Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Third Respondent
NSW CIVIL & ADMINISTRATIVE TRIBUNAL
Fourth Respondent

Office of the Registry
Sydney No S45 of 2017

B e t w e e n -
STATE OF NEW SOUTH WALES
Applicant
and
GARRY BURNS
First Respondent
BERNARD GAYNOR
Second Respondent
ATTORNEY‑GENERAL FOR THE COMMONWEALTH
Third Respondent
CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES
Fourth Respondent

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 22 JUNE 2017, AT 9.29 AM

____________________

EDELMAN J: In each of these applications, Justice Gordon and I are of the view there should be a grant of special leave.

In each of matters S43 of 2017 and S44 of 2017, the Attorney‑General for New South Wales has undertaken not to seek his costs of the special leave application or the appeal and not to seek to disturb the costs orders in the court below.

The parties will be contacted with respect to an estimate of time for the hearing of these appeals and the parties will be made aware of the directions necessary for the undertaking of these appeals.

The Court will now adjourn to 10.00 am.

AT 9.30 AM THE MATTER WAS ADJOURNED

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: [2017] HCATrans 136
Decision Date

CaseChat Overview and Summary

In these applications before the High Court of Australia, the applicants, including the Attorney-General for New South Wales and the Attorney-General for the Commonwealth, sought special leave to appeal decisions made by the Civil and Administrative Tribunal of New South Wales. The specific nature of the dispute between the parties is not detailed in this transcript.

The primary legal issue before the High Court was whether to grant special leave to appeal. This involves determining if the proposed appeals raise a question of law of public importance or if there is any other reason why the High Court should grant leave.

Justices Gordon and Edelman were of the view that special leave should be granted in each of the applications. In two of the matters (S43 and S44 of 2017), the Attorney-General for New South Wales provided an undertaking not to seek costs for the special leave application or the appeal, and also not to seek to disturb the costs orders made in the court below. The court indicated that further directions and time estimates for the hearing of the appeals would be communicated to the parties.

Orders