Gaynor v Burns

Case [2025] NSWCA 170


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Gaynor v Burns [2025] NSWCA 170
Hearing dates: 28 July 2025
Date of orders: 30 July 2025
Decision date: 30 July 2025
Before: Free JA
Decision:

(1)   The notice of appeal filed 13 June 2025 is dismissed as incompetent.

(2)   The appellant is to pay the costs of the fourth respondent.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal required — Supreme Court Act 1970 (NSW), s 101(2)(r) — whether $100,000 jurisdictional limit satisfied — assessment of the value of the matters realistically in contest in the appeal — realistic assessment of the merit of relief claimed

HUMAN RIGHTS — discrimination — grounds — sexual-orientation discrimination — homosexual vilification — whether damages in default of compliance with an order pursuant to Anti-Discrimination Act 1977 (NSW), s 108(7) payable to third party

COSTS — whether costs should follow the event where purported intervener successful on motion

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), ss 49ZT, 89B, 93C, 108

Civil and Administrative Tribunal Act 2013 (NSW), ss 34B, 34C

Commonwealth Constitution, s 75

Supreme Court Act 1970 (NSW), ss 46, 101

Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1)

Cases Cited:

Ballas v Theophilos (No 1) (1957) 97 CLR 186; [1957] HCA 49

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Gaynor v Attorney General of New South Wales [2020] NSWCA 48

Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450

McGinn v Cranbrook School [2015] NSWCA 378

Nanschild v Pratt [2011] NSWCA 85

Category:Procedural rulings
Parties: Bernard Gaynor (Appellant)
Garry Burns (First respondent)
The Delegate of the President of the Anti-Discrimination Board (Second Respondent)
Civil and Administrative Tribunal of New South Wales (Third respondent)
Attorney-General for New South Wales (Fourth respondent)
Representation:

Counsel:
R Rasmussen (Appellant)
D Birch (Fourth respondent)

G Burns (First respondent) (self-represented)

Solicitors:
Robert Balzola Lawyers (Appellant)
Crown Solicitor’s Office (NSW) (Fourth respondent)
File Number(s): 2025/114717
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:

[2025] NSWSC 185

Date of Decision:
12 March 2025
Before:
N Adams J
File Number(s):
2024/200704

Judgment

  1. FREE JA: By notice of motion filed on 8 July 2025 the Attorney General seeks an order dismissing as incompetent the notice of appeal filed on 13 June 2025 by Bernard Gaynor. The Attorney General contends that, pursuant to s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), leave is required. The appellant, despite having been on notice of the objection to competency for several weeks, has declined to file a summons seeking leave to appeal. The appellant maintains that he has a right to appeal, and no leave is required, on the basis that his appeal is one that falls within s 101(2)(r). This is because, the appellant contends,…

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AGLC
Gaynor v Burns [2025] NSWCA 170
Case
[2025] NSWCA 170
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by Gaynor against Burns and others. The dispute concerned an application for damages in default of compliance with an order made under section 108(7) of the *Anti-Discrimination Act 1977* (NSW), specifically relating to homosexual vilification.

The primary legal issues before the Court were whether leave to appeal was required for the appeal to be competent, given that leave had not been sought, and whether the jurisdictional limit of $100,000 under section 101(2)(r) of the *Supreme Court Act 1970* (NSW) was satisfied. The Court also had to consider the assessment of the value of the matters realistically in contest in the appeal and the merit of the relief claimed.

Free JA determined that the appeal was incompetent because leave to appeal had not been sought, and the jurisdictional limit was not met. The Court assessed the value of the matters realistically in contest and found that it did not exceed the $100,000 threshold. Consequently, the notice of appeal was dismissed as incompetent. The appellant was ordered to pay the costs of the fourth respondent.

Orders

Orders of the court

(1) The notice of appeal filed 13 June 2025 is dismissed as incompetent.

(2) The appellant is to pay the costs of the fourth respondent.

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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