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Gaynor v Burns

Gaynor v Burns

Case [2025] NSWCA 170 30 July 2025

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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

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,…

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.

Continue reading Gaynor v Burns

Details

AGLC: Gaynor v Burns [2025] NSWCA 170
Case: [2025] NSWCA 170
Decision Date: 30 July 2025

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

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.

Citations

AGLC Citation

Gaynor v Burns [2025] NSWCA 170

Most Recent Citation

Wojciechowska v Commissioner of Police [2022] NSWCATAD 70

Cases citing this decision · 12 of 12 shown

Gaynor v Burns (No 2)
[2025] NSWSC 885 Para 5

…tified that the plaintiff’s notice of appeal lodged to the Court of Appeal was dismissed by Free JA on the basis it was incompetent: Gaynor v Burns [2025] NSWCA 170.…
Auskosu Pty Ltd v Lendlease Real Estate Investments Limited; Auskosu Pty Ltd v Lendlease Real Estate Investments Limited
[2023] NSWCATCD 33

…ination could not validly sustain an exercise of the power to order costs. That incidentally is consistent with what was said in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3. Mr Burns (who had commenced proceedings against Mr Gaynor, a resident of Queensland), obtained a favourable costs order. In…
Quach v New South Wales Civil and Administrative Tribunal (No 2)
[2022] NSWCA 177 Para 17

…ained in Pt 3A (“Federal proceedings”) of that Act. Pt 3A was introduced on 1 December 2017 following this Court’s decision in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 which held that the Tribunal cannot exercise federal diversity jurisdiction because it is not a court invested with such juris…
Wojciechowska v Commissioner of Police
[2022] NSWCATAD 70 Para 39

…MVR 357; [2016] NSWCA 13 Burns v Corbett (2018) 265 CLR 304; (2018) 92 ALJR 423; (2018) 353 ALR 386; [2018] HCA 15 at [39] Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; (2017) 343 ALR 690; (2017) 316 FLR 448; [2017] NSWCA 3 Drake v Minister for Immigration and Ethnic Affairs (1993) 40 FLR 409 at 419 EFB v Commiss…
Sara Stockham Pty Ltd v WLD Practice Holdings Pty Ltd
[2021] NSWCA 51 Para 25

…ons given for the purpose of answering a particular issue for a different purpose; reasons of courts must always be read in context: Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [89]-[90].…
Choi v University of Technology Sydney (No 3)
[2020] NSWCA 343 Para 44

…fferent states, to the circumstances of her case. “Diversity” jurisdiction can give rise to constitutional questions (see also Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3; Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48) but those questions do not arise in a si…
Wilson v Chan & Naylor Parramatta Pty Ltd
[2020] NSWCA 213 Para 28

…termination could not validly sustain an exercise of the power to order costs. That incidentally is consistent with what was said in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3. Mr Burns (who had commenced proceedings against Mr Gaynor, a resident of Queensland), obtained a favourable costs order…
Abbott v Burns
[2020] NSWSC 491 Para 7

…However, on 3 February 2017, the New South Wales Court of Appeal handed down its decision of Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 (“ Corbett ”). Mr Burns was also an appellant in that case. In Corbett , the Court of Appeal held that as the Tribunal is not a court of the State, it does not…
Kelly v Szatow
[2020] NSWSC 407

…996] NSWCA 59 Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 Briscoe-Hough v Tegg [2018] NSWCATAD 108 Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 Crane v Mission to Seafarers Newcastle Inc [2018] NSWSC 429 Da…
Gaynor v Local Court of NSW
[2019] NSWSC 805 Para 12

…ere disposed of by making a declaration to the effect that the Tribunal was not authorised to decide the first three complaints: see Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [110]. That declaration was made on the basis that a State tribunal that is not a “court of a State” within the meani…
Gaynor v Local Court of NSW
[2019] NSWSC 516 Para 2

…. Their disputes have reached the NSW Civil and Administrative Tribunal ( Burns v Gaynor [2015] NSWCATAD 211), the Court of Appeal ( Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3) and even the High Court of Australia ( Burns v Corbett; Burns v Gaynor (2018) 92 ALJR 423; [2018] HCA 15). These procee…
Zistis v Zistis (No 2)
[2019] NSWSC 227 Para 2

…inate possession of the property. The validity provisions of the Residential Tenancies Act arose in the light of what was decided in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3.…

View all 12 citing cases →

Cases cited in this decision · 9 of 9 shown

Gaynor v Burns
[2025] NSWSC 185 Para 4

…The appeal is brought from the judgment of N Adams J in Gaynor v Burns [2025] NSWSC 185. The Attorney General was joined as a defendant to the proceedings below and was the sole active contradictor before her Honour. The Attorney General is the fourth respondent in the appeal. The first respondent, Mr Burns, filed…
Gaynor v Attorney General of New South Wales
[2020] NSWCA 48 Para 19

…ose principles were stated by the Court of Appeal in another putative appeal involving the same parties: Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing) ( Gaynor v Attorney General ).…
Burns v Corbett
[2018] HCA 15

…edure 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…
Burns v Corbett & Ors; Burns v Gaynor & Ors; Attorney General for NSW v Burns & Ors; Attorney General for NSW v Burns & Ors; State of NSW v Burns & Ors
[2017] HCATrans 249 Para 6

…exercise of judicial power is concerned because of the special treatment of diversity jurisdiction under s 75 of the Constitution , as considered in Burns v Corbett (2017) 265 CLR 304; [2018] HCA 15 ( Burns v Corbett ). The material point for present purposes is that NCAT lacks jurisdiction to resolve a dispute of the k…
McGinn v Cranbrook School
[2015] NSWCA 378 Para 2

…Rules 2005 (NSW). The rules thus specify the present circumstances as providing cause for an appeal to be dismissed: McGinn v Cranbrook School [2015] NSWCA 378 at [5].…
Nanschild v Pratt
[2011] NSWCA 85 Para 22

…Mr Gaynor also drew attention to Nanschild v Pratt [2011] NSWCA 85 at [30], where McColl JA (with whom Campbell JA agreed) referred to the “guiding principle” as articulated in Ballas v Theophilos (No 1) [1957] HCA 49; (1957) 97 CLR 186 at 193 as being whether the judgment from which the appeal was sought placed t…
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2)
[2001] NSWCA 450 Para 4

…of such claims: Gaynor v Attorney General at [17], citing with approval Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [11].…
Ballas v Theophilos (No 2)
[1957] HCA 90

…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 respond…
Ballas v Theophilos (No 1)
[1957] HCA 49 Para 22

…NSWCA 85 at [30], where McColl JA (with whom Campbell JA agreed) referred to the “guiding principle” as articulated in Ballas v Theophilos (No 1) [1957] HCA 49; (1957) 97 CLR 186 at 193 as being whether the judgment from which the appeal was sought placed the appellant “in a position of prejudice [in the amount…

Legislation cited in this decision · 5

Anti-Discrimination Act 1977 (NSW)
108, 108(7), 49ZT, 89B, 93C 6 mentions (from Para 5)
Supreme Court Act 1970 (NSW)
101, 101(2)(r), 46 4 mentions (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
34B, 34C 3 mentions (from Para 7)
Constitution of Australia (Cth)
101, 75 2 mentions
Uniform Civil Procedure Rules 2005 (NSW)
51.41(1) 2 mentions (from Para 2)

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