Gaynor v Burns

Case [2025] NSWSC 185


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Gaynor v Burns [2025] NSWSC 185
Hearing dates: 12 December 2024
Date of orders: 12 March 2025
Decision date: 12 March 2025
Jurisdiction:Common Law
Before: N Adams J
Decision:

(1) Time for bringing these proceedings in relation to the first decision is extended for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2).

(2) The summons is dismissed.

(3) The plaintiff is to pay the fourth defendant’s costs on the ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – diversity jurisdiction – extraterritoriality – dispute between residents of two States arising under State law – whether the Anti-Discrimination Board (NSW) has jurisdiction to accept and refer a complaint of homosexual vilification to NCAT pursuant to ss 89B and 93C of the Anti-Discrimination Act 1977 (NSW) where residents of two different States – whether a delegate of the President of the Board needs to be satisfied of residency in NSW and that the relevant “public act” occurred in NSW before exercising any discretionary power – whether these factors constituted jurisdictional facts – not found to constitute jurisdictional facts – Anti-Discrimination Board (NSW) found to possess relevant jurisdiction to accept complaints and refer to NCAT

ANTI-DISCRIMINATION – meaning of homosexual vilification provisions in Anti-Discrimination Act 1977 (NSW) – section 49ZT – meaning of “to incite” – meaning of “public act”

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), Pt 4C, Div 4, Part 9, Divs 2 and 3, ss 49ZS, 49ZT, 87A, 88, 88B, 89, 89A, 89B, 90, 90A, 91A, 92, 93A, 93B, 93C, 94A, 102, 108

Civil and Administrative Tribunal Act (2013), Pt 3A, ss 28, 29, 32, 34B, 34C

Commonwealth Constitution, s 75(iv)

Judiciary Act 1903 (Cth), s 39

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited [2024] QCAT 201

Baxter v Air New Zealand [2012] VCAT 1666

BHP Group Ltd v Impiombato (2020) 276 CLR 611; [2022] HCA 33

Bottrill v Sunol [2017] ACAT 81

Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78

Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3

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

Burns v Gaynor [2015] NSWCATAD 211

Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101

Collier v Sunol [2005] NSWADT 261

Dempster v National Companies & Securities Commission (1993) 9 WAR 215

Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

Enfield City v Development Assessment Commission (2005) 199 CLR 135; [2005] HCA 5

Farah v Sandilands [2021] ACAT 92

Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48

Gaynor v Local Court of NSW [2019] NSWSC 805

Goliath Portland Cement Co…

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AGLC
Gaynor v Burns [2025] NSWSC 185
Case
[2025] NSWSC 185
Decision Date

CaseChat Overview and Summary

In the case of Gaynor v Burns, the dispute arose between two residents of different states, with the complainant, Gaynor, residing in New South Wales and the respondent, Burns, in Victoria. The issue before the court was whether the Anti-Discrimination Board (NSW) had jurisdiction to accept and refer a complaint of homosexual vilification to the New South Wales Civil and Administrative Tribunal (NCAT). The dispute was centred on the interpretation of the Anti-Discrimination Act 1977 (NSW) and whether a delegate of the President of the Board needed to be satisfied of residency in New South Wales and that the relevant “public act” occurred in New South Wales before exercising any discretionary power. The court was required to determine whether these factors constituted jurisdictional facts.

The court examined the meaning of “homosexual vilification” as provided in section 49ZT of the Anti-Discrimination Act 1977 (NSW) and the meaning of “to incite” and “public act” in the context of the legislation. The court found that the jurisdictional facts did not need to be established by the delegate before exercising their discretion to accept a complaint and refer it to NCAT. This was because the provisions of the Anti-Discrimination Act 1977 (NSW) did not require a delegate of the President of the Board to be satisfied of residency in New South Wales and that the relevant “public act” occurred in New South Wales before exercising any discretionary power.

The court concluded that the Anti-Discrimination Board (NSW) possessed the relevant jurisdiction to accept complaints and refer them to NCAT. The court found that the jurisdictional facts did not need to be established by the delegate before exercising their discretion to accept a complaint and refer it to NCAT, as the provisions of the Anti-Discrimination Act 1977 (NSW) did not require such a satisfaction. Therefore, the Anti-Discrimination Board (NSW) was found to have the jurisdiction to accept and refer the complaint of homosexual vilification to NCAT.

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