Gaynor v Burns

[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 Ltd v Bengtell (1994) 33 NSWLR 414

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16

Jones v Trad (2013) 86 NSWLR 241; [2013] NSWCA 389

Karpik v Carnival plc [2023] HCA 39; (2023) 98 ALJR 45

Margan v Manias [2015] NSWCA 388

Sunol v Collier (No. 2) [2012] NSWCA 44

Sunol v Kerslake (Appeal) [2024] ACAT 35

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

Texts Cited:

Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (NSW)

Justice Legislation Amendment Bill (No 2) 2017 (NSW)

Category:

Principal judgment

Parties:

Bernard Gaynor (Plaintiff)
Garry Burns (First Defendant) (submitting appearance)
The Delegate of the President of the Anti-Discrimination Board (NSW) (Second Defendant) (submitting appearance)
NSW Civil and Administrative Tribunal (Third Defendant) (submitting appearance)
Attorney General of New South Wales (intervening) (Fourth Defendant)

Representation:

Counsel:
Mr R Rasmussen (Plaintiff)
Mr D Birch (Fourth Defendant)

Solicitors:
Robert Balzola and Associates (Plaintiff)
Crown Solicitor’s Office (Fourth Defendant)

File Number(s):

2024/00200704

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Anti-Discrimination Board (NSW)

Date of Decision:

15 January 2024

Before:

The Delegate of the President of the Anti-Discrimination Board (NSW)

File Number(s):

C2024-0017

JUDGMENT

1. On 29 December 2023, Mr Garry Burns, the first defendant, lodged a complaint with the President of the Anti-Discrimination Board (NSW) (“the ADB”) in respect of a YouTube video posted by Mr Bernard Gaynor, the plaintiff, on “X” (previously “Twitter”) on or about 27 November 2023. Mr Burns alleged the video constituted homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 (NSW) (“the AD Act”).

2. This complaint by Mr Burns is the most recent in a long series of similar complaints made by him about Mr Gaynor. Mr Gaynor is a conservative blogger whereas Mr Burns is a self-described gay Australian anti-discrimination campaigner. These two men have been mired in legal disputes for some years. The legal complexity of Mr Burns’ otherwise relatively straightforward complaints arises from the fact that Mr Burns resides in New South Wales (“NSW”) whereas Mr Gaynor resides in Queensland. Some of the previous decisions concerning the long running animus between these two men are relevant to these proceedings including: Burns v Gaynor [2015] NSWCATAD 211; Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 (“Burns v Corbett (CA)”); Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (“Burns v Corbett (HC)”); Gaynor v Local Court of NSW [2019] NSWSC 805 and Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48.

3. On 15 January 2024, Mr Burns’ complaint was accepted by the ADB and on 15 April 2024 the complaint was referred to the NSW Civil and Administrative Tribunal (“NCAT”). By amended summons filed on 6 August 2024, the plaintiff seeks judicial review of the two decisions made by the Delegate of the ADB (“the Delegate”): the decision on 15 January 2024 made pursuant to s 89B of the AD Act to accept the complaint of homosexual vilification made by the defendant against the plaintiff; and, the decision on 15 April 2024 made pursuant to s 93C of the AD Act to refer that complaint to NCAT.

4. In short, the plaintiff submits that the ADB lacked jurisdiction to accept and refer the complaint because whereas Mr Burns resides in New South Wales (NSW), Mr Gaynor resides in Queensland and the alleged “public act” did not occur in NSW.

5. Three grounds are set out in the amended summons in these terms:

“1   The plaintiff claims that each decision of the Delegate was affected by a lack or want of jurisdiction, in that:

(i) The Anti-Discrimination Board of New South Wales had no jurisdiction to accept for investigation a complaint pursuant to s 49ZT of the Anti­Discrimination Act 1977 (NSW), made by a resident of New South Wales against a resident of Queensland.

(ii) The Anti-Discrimination Board of New South Wales had no jurisdiction to accept for investigation a complaint pursuant to s 49ZT of the Anti­Discrimination Act 1977 (NSW), made by a resident of New South Wales against a resident of Queensland in respect of an alleged public act not made in New South Wales within the meaning of s 49ZS of the Anti-Discrimination Act 1977 (NSW).

2   The Delegate, in deciding to accept and then to refer the complaint No. C2024-0017 failed to take into account in respect of each decision, relevant considerations, namely, that the jurisdictional facts set out above were not satisfied.

3   The Delegate, in deciding to accept and then to refer the complaint No. C2024-0017 to the Civil and Administrative Tribunal of New South Wales, failed to take into account relevant considerations, namely:

(i)   that there is a presumption against the extra-territorial operation of the Anti-­Discrimination Act 1977 (NSW);

(ii)   that the alleged public act of homosexual vilification did not occur in the state of New South Wales;

(iii)   that the Anti-Discrimination Board of NSW was bound by the authority of Burns v Gaynor [2015] NSWCATAD 211 to the effect that the placement on the internet by a person situated in a state other than New South Wales was not a public act in New South Wales within the meaning of s 49ZS of the Anti-Discrimination Act 1977 (NSW);

(iv)   that the respondent to the complaint was resident, at the time of the alleged public act of homosexual vilification in Queensland, a fact well known to the President of the Anti-Discrimination Board of NSW;

(v)   that the Anti-Discrimination Board of NSW was bound by the authority of Burns v Corbett [2018] HCA 15 (265 CLR 304) to the effect that it had no jurisdiction to investigate a complaint between residents of two states of Australia;

(vi)   that the complaint No. C2024-0017 was lacking in substance in that it did not include the entire material claimed by the complainant to have been published on the internet by the respondent to the complaint;

(vii) that a referral of the complaint No. C2024-0017 to the Civil and Administrative Tribunal of New South Wales pursuant to s 93C of the Anti­Discrimination Act (NSW) would be a referral to a Tribunal that had no jurisdiction to investigate, conciliate, terminate, or decide a complaint so referred between residents of two states of Australia.”

6. The plaintiff's submissions, both written and oral, framed the jurisdictional error as being the absence of the two jurisdictional facts referred to in Grounds 1 (i) and (ii) and the failure to take into account that those two jurisdictional facts were not present in this matter: Ground 2. The matters listed in Ground 3 were relied upon in support of the alleged errors in Grounds 1 and 2 and I have proceeded on the basis that Ground 3 was effectively abandoned.

7. Mr Burns, the Delegate (the second defendant), and NCAT, (the third defendant), all filed submitting appearances. Pursuant to orders made on 30 July 2024, the Attorney General was granted leave to intervene in the proceedings and was joined as the fourth defendant. He is the only active contradictor.

8. Review of the first decision was made out of time pursuant to r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) which stipulates that “[p]roceedings for judicial review of a decision must be commenced within 3 months of the date of the decision”. Mr Gaynor sought an extension of time under r 59.10(2) of the UCPR which was not opposed by the Attorney General.

Background/chronology of most recent complaint

9. On 8 January 2024, the ADB received Mr Burns’ complaint via letter dated 29 December 2023. The letter was in these terms (I have removed some of the irregular spacing in it but have otherwise extracted it verbatim):

“Complaint against Bernard William Gaynor alleging homosexuality vilification under section 88 Anti-Discrimination Act 1977 NSW (relevant characteristic)

Dear President.

On or around 6.34pm on Monday the 27^th November 2023 Mr Gaynor published on his Twitter @Bernard Gaynor a YouTube clip that images homosexuals marching in sync while dressed in Nazi uniforms wearing pink lipstick with the colours of the gay/homosexual rainbow flag going through the centre of the homosexual nazi’s to identify (he. Mr Gaynor) is speaking. identifying male and female homosexuals by his publication.

I allege by Mr Gaynor publishing such pernicious imagery of homosexuals linking their male and female sexuality to naziism (Hitler) condones an extremism supporting and promoting hatred against homosexuals which is capable of inciting the requisite emotions of ridicule, contempt and or hatred of those groups (Section 49ZT (1) Anri-Discrimination Act 1977, (NSW)

It is a public act pursuant to S 49 ZS Anti – Discrimination Act 1977 (NSW).

I don’t want my male homosexuality to be linked to that of a nazi.

Between the dates of 1930 to 1945 Adolf Hitler not only gassed and killed millions of Jews but also tortured many homosexuals. either actual or perceived on the ground of their male homosexuality.

Male Homosexuals (between 5-15.000) were made to wear a Pink Swastika and Jews were made to wear a Yellow Star. Some Male Homosexuals were tortured while others were castrated and or beaten and imprisoned.

On the top of the YouTube Mr Gaynor publishes (fully sick) (Annexure A)

**This is what winning looks like…

We prevented a radical left wing gay mob from targeting a family home on Sunday in Wynnum.

Above the image of homosexuals dressed in nazi uniforms while parading in pink lipstick Mr Gaynor said “(sick)

“HOW IT STARTED” ….

The crazies though (sic) that we would be passive and give in. We don’t do that here in Brisbane. Woke fun is over.

Thank you all for getting involved”.

Under the image of the homosexuals dressed in nazi uniforms are 2,095 views

9 Reposts.

30 Likes. ( Annexure B)

If the president accepts my complaint for investigation could she send all correspondence to Mr Gaynor’s solicitor (address is outlined below) by AGENT as per the orders of LCM Moody;

The address for Mr Robert Balzola is:

Level 8 25 Restwell Street Bankstown 2200.

Kind Regards,

Garry Burns.”

10. Annexures A and B were poor quality photographs taken of a computer screen. Annexure A depicted what is described in the complaint whereas Annexure B depicted the number of “likes” etc.

11. On 15 January 2024, the Delegate accepted the complaint under s 89B of the AD Act.

12. On 6 February 2024, Mr Burns emailed a larger and clearer picture of the publication. He also added that:

“The picture identifies nazi’s by linking them to male homosexuals because of the rainbow flag while carrying wooden batons with sharp blades sticking out of them.

I didn’t mention this in my original complaint to the President but I believe it’s important to mention it here so the President is made aware of it.”

13. On 23 February 2024, the decision to accept the complaint was communicated to Mr Gaynor by way of letter sent by email from Ms Connie Santiago, an ADB conciliation officer, to Mr Gaynor’s personal email address. That email address was not provided by Mr Burns in his complaint. The inference is that the ADB already had Mr Gaynor’s email address from the numerous previous complaints made against him by Mr Burns.

14. That same day, Mr Gaynor emailed Ms Santiago complaining, inter alia, that the complaint did not include any relevant printout out or transcript of the publication. He described the complaint as “vexatious” and stated that the images Mr Burns had submitted as evidence of the “X” post were photos Mr Burns had taken of his own computer and were “entirely illegible”. Ms Santiago replied on 26 February enclosing larger photos of the publication.

15. On 1 April 2024, Mr Balzola, the plaintiff’s solicitor, wrote to the ADB pointing out that the President and the Delegate of the ADB should be aware that Mr Burns had previously brought unsuccessful complaints against him and thus would be aware that he resided in Queensland. The plaintiff submitted that the ADB has no jurisdiction to investigate the complaint. A copy of the reasons was sought, and attention was drawn to a number of matters relevant to the decision to accept the complaint. It is not necessary to extract them all for the purpose of these reasons but one of the matters raised was that the decision in Burns v Gaynor held that placing material on the internet by a resident of another State is not a public act within the state of NSW.

16. On 15 April 2024, Ms Santiago replied to the above letter. She advised Mr Gaynor that the ADB did not accept the plaintiff’s position that the ADB had no jurisdiction to investigate the complaint. The following reasons were provided for the initial decision to accept the complaint:

“… The Delegate’s assessment of the information provided by the complainant at the time of lodgement was that the complaint met the threshold criteria for acceptance under section 89B, for investigation. That criterion being that a complaint discloses the following elements:

An identifiable respondent

A statutory ground

A detriment

In consideration of your client’s submissions, the Delegate has decided to refer the complaint to the NSW Civil and Administrative Tribunal, pursuant to section 93(c) of the Anti-Discrimination Act 1977 (NSW) (ADA) because:

The President’s Delegate is of the opinion that the nature of the complaint is such that it should be referred to the Tribunal.”

17. On that same day, Mr Burns was emailed a copy of this letter. He replied to Ms Santiago in the following terms (emphasis in original):

“Dear Ms Santiago,

Thank you for your correspondence today???s date.

If there is an issue raised by Mr Gaynor???s lawyer regarding proper service of my complaint the NSW ADB can forward my original complaint and all further document???s / correspondence to Mr Gaynor???s PO BOX address provided by me to the ADB by registered post.

I don???t want my Application / Complaint dismissed on a technicality because Mr Gaynor???s lawyer will raise every point.

In relation to number 8 of Mr Balzola???s submission is??? misconceived ??? because I have not lodged this complaint on behalf of other female and male homosexuals.

The complaint by me has been lodged ANTI - DISCRIMINATION ACT 1977 - SECT 88

A vilification complaint cannot be made unless each person on whose behalf the complaint is made???

(a)   has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b)   claims to have that characteristic and there is no sufficient reason to doubt that claim

I am not relying on the YOUTUBE clip as an alleged breach of the ADA 1977???s Anti - Vilification Provisions.

The link the subject of my complaint against Mr Gaynor relates to: which when clicked open s up the Hitler Image / Photo - published by Mr Gaynor.

I am only relying on Mr Gaynor???s publication (image) published on his Twitter (X) by him of

homosexuals dressed up in nazi uniform. (alleged breach of s.49ZT Anti - Discrimination Act (1977) (NSW). Mr Gaynor is responsible for moderating his post (s49ZS, which is a public act of Mr Gaynor)

Mr Gaynor is the author of the publication who uploaded the image to his Twitter (X).

I allege the publication by Mr Gaynor on his Twitter (X) feed is a contravention of Anti- Vilification Provisions because it has a capacity to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality of the person or members of the group. See S. 88 ADA 1977 (NSW) I am a male homosexual. I do have standing to lodge this complaint.

My complaint is in the ??? public interest. I am not seeking damages.I am not entitled to damages because Mr Gaynor???s pernicious publication does not name me.

If my Application is substantiated I will be asking the Local Court Magistrate (LCM) that Mr Gaynor is to make a donation to the ANGLICARE charity not exceeding the jurisdiction of the Local Court of NSW which is $100, 000.

Mr Gaynor has challenged the jurisdiction of the Local Court previously in GAYNOR v LOCAL COURT OF NSW & ORS (2019) NSWSC 805, Further Amended Summons by Justice Harrison Dismissed. PART 3A is valid.

These are Diversity Proceedings s. 34B of the CATA 2013 Substituted Proceedings Sydney.

Mr Gaynor???s lawyer in his submission said ??? all my previous Applications were dismissed ???.

That is not a submission. It is opinion that this Application will also be dismissed.

This Application is arguable. I will not be withdrawing it.

The image of homosexuals with the gay / homosexual rainbow flag superimposed through it while carrying batons over their shoulder with blades implies violence.

Above the image of homosexuals dressed in NAZI uniform Mr Gaynor published (fully sic)

??? HOW IT STARTED ??? ???. (above the image of homosexuals dressed in nazi uniform).

The crazies though (sic) that we would be passive and give in. We don???t do that here in Brisbane. Woke fun is over.

Thank you all for getting involved ???.

That is a call to arms by Mr Gaynor. I allege that statement is a encouragement by Gaynor to harm homosexuals.

Objectively that suggests or implies ??? blood & murder??? toward male and female homosexuals. It has a violent intent / encouragement.

Adolf Hitler killed millions of Jews by holding them in concentration camps and gassing them to death.

Adolf Hitler also killed many thousands of male homosexuals by gassing them to death and castrating them.

I don???t want my homosexuality linked to such depravity.

Seeing Mr Gaynor has argued that I don???t have jurisdiction the NSW Attorney General may intervene?

Could you please provide a copy of this reply to Mr Balzola?

Kind regards,

Garry Burns

Applicant / Complainant.”

18. On 30 May 2024, Mr Gaynor commenced these proceedings.

19. On 27 June 2024, Mr Balzola wrote to the Crown Solicitor’s Office seeking clarification of certain matters. On 29 July 2024, the Crown Solicitor’s Office wrote to Mr Balzola clarifying the reasons for the decision as follows:

“Dear Mr Balzola

Gaynor B v Burns G & ors — Supreme Court of NSW proceedings no. 2024/200704

I refer to the above proceedings, and to your letter of 27 June 2024. I am instructed to respond to so much of that letter as concerns the second defendant as follows.

Your request is not a valid notice for the purposes of rule 59.9(2) of the Uniform Civil Procedure Rules 2005 (the UCPR), since it was not served within 21 days of commencing proceedings, and the court has not made a direction that the plaintiff may serve a notice at some other time. Nevertheless, I am instructed to respond to the substance of your request, to avoid an application to the Court (which, in accordance with the submissions made on 24 June 2024, would need to be determined by a Judge).

Decision of 15 January 2024

The decision of 15 January 2024, under s 89B of the Anti-Discrimination Act 1977, was made in a workflow management system called ‘Resolve’. In short, Resolve allows various steps in relation to a single complaint (incoming and outgoing correspondence and telephone calls, recommendation, decisions, etc.) to be managed and recorded in a single system.

When a decision under s 89B of the Anti-Discrimination Act is required, an ‘action’ in Resolve is created, and automatically allocated to all relevant decision-makers. In this case, Ms Lynette Byrnes, a Manager, Enquiries and Conciliation, as Delegate of the President of the Anti-Discrimination Board, took up that ‘action’ and decided to accept the complaint made by the first defendant by letter dated 29 December 2023 (and received on 8 January 2024).

I enclose a screenshot from Resolve, which constitutes a ‘copy of the decision’ of 15 January 2024 for the purposes of r 59.9(2)(a) of the UCPR.

On 15 April 2024, Ms Connie Santiago, Conciliation Officer, conferred with Ms Byrnes about your letter of 1 April 2024, which included, inter alia, a request for the reasons of Ms Byrnes’s decision of 15 January 2024.

I am instructed that no contemporaneous record of that conversation exists. However, Ms Byrnes has confirmed that the reasons given by Ms Santiago, in her letter to you of 15 April 2024 (the 15 April 2024 letter), correctly record Ms Byrnes’s reasons for the decision she had made on 15 January 2024.

I accordingly enclose a copy of the 15 April 2024 letter, the relevant part of which constitutes Ms Byrnes’s reasons for her decision of 15 January 2024 for the purposes of r 59.9(2)(b) of the UCPR.

Decision of 15 April 2024

On 15 April 2024, Ms Byrnes, as Delegate of the President, also made the decision to refer Mr Burns’ complaint to the Civil and Administrative Tribunal, in accordance with s 93C of the Anti-Discrimination Act, in the circumstances which follow.

I am instructed that, in the telephone conference referred to above, Ms Byrnes and Ms Santiago discussed the fact that your letter challenged the jurisdiction of the Anti-Discrimination Board to make a decision in respect of Mr Burns’ complaint. Ms Byrnes decided that the challenge to the Board’s jurisdiction was a matter which meant that the complaint should be referred to the Tribunal, for the purposes of s 93C(c) of the Anti-Discrimination Act. She authorised Ms Santiago to convey that decision on her behalf.

Accordingly, the 15 April 2024 letter also constitutes a ‘copy of the decision’ of 15 April 2024, for the purposes of r 59.9(2)(a) of the UCPR.

Furthermore, at the time of making the decision on 15 April 2024, Ms Byrnes considered that the nature of the vilification alleged by Mr Burns, and the nature of the relationship between your client and Mr Burns, were reasons why the complaint could not be resolved by conciliation, for the purposes of s 93C(c) of the Anti-Discrimination Act. However, that additional ground is not recorded the 15 April 2024 letter.

Later, on or around 2 May 2024, Ms Santiago prepared a written recommendation to Ms Byrnes that she endorse the decision made on 15 April 2024. The purpose of that recommendation was to formalise the decision that had previously been conveyed orally. The recommendation attached several documents, including the 15 April 2024 letter. The recommendation was saved in Resolve for Ms Byrnes’s review.

On 2 May 2024, Ms Byrnes adopted the recommendation by reviewing it in Resolve, adding her reasons under the heading ‘Delegate's Decision’, and saving the document as amended in Resolve once again. When saving the document in Resolve, she recorded the following additional comment:

‘I agree with the recommendation to refer to NCAT under s93C(a) for the reasons in the rec’

For the avoidance of doubt, although Ms Santiago’s recommendation does not refer to s 93C(c) of the Anti-Discrimination Act (as had the 15 April 2024 letter), Ms Byrnes instructs me that that ground was, cumulatively with the ground in s 93C(a), part of reasons for deciding to refer the complaint on 15 April 2024.

I enclose a copy of Ms Santiago’s recommendation, as endorsed by Ms Byrnes on 2 May 2024, and its attachments. I invite you to treat that recommendation, together with the reasons recorded in the 15 April 2024 letter, each as clarified in this letter, as comprising Ms Byrnes’s reasons for the decision of 15 April 2024, for the purposes of r 59.9(2)(b) of the UCPR.”

20. On 6 August 2024, the plaintiff filed the amended summons.

Legislation

21. The relevant legislation is contained in Part 4C, Division 4 (Homosexual vilification) and Part 9, Division 2 (Complaints—the functions of the President) of the AD Act and relevant sections of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

Anti-Discrimination Act

22. Part 4C of the AD Act is titled “Discrimination on the ground of homosexuality” and Division 4 is titled “Homosexual vilification”. Relevantly, Division 4 provides:

49ZS Definition

In this Division—

public act includes—

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful—

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

23. Part 9 of the AD Act is titled “The functions of the President, the Tribunal and the Board”. Division 2 of that Part sets out the process required to lodge a complaint to the President of the Board. Section 87A permits the making of a complaint regarding someone who has contravened a provision of the AD Act, including s 49ZT in this case:

87A Persons who may make a complaint

(1) A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by any of the following—

(a) one or more persons—

(i) on his, her or their own behalf, or

(ii) on his, her or their own behalf as well as on behalf of another person or persons,

(b) a parent or guardian of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability),

(c) a representative body on behalf of a named person or persons, subject to section 87C,

(d) an agent of any of the persons referred to in paragraph (a), (b) or (c).

(2) Nothing in this Division prevents a person from making a complaint (not being a representative complaint) even though the conduct in respect of which the complaint is made is also conduct in respect of which a representative complaint has been made.

24. Section 88 then outlines specific criteria to be met in vilification complaints:

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made—

(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.

25. As for the form and content of complaints, s 89 provides that:

89 Form and content of complaints

(1) A complaint is to be in writing but does not have to take any particular form.

(2) A complaint, as made, need not demonstrate a prima facie case.

26. Section 89A states that a complaint is made by being lodged with the President of the Board.

27. Section 89B then provides:

89B Acceptance or declining of complaints by the President

(1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part.

(2) The President may decline a complaint if—

(a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or

(b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or

(c) the conduct complained of could amount to a contravention of a provision of this Act for which a specific penalty is imposed, or

(d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or

(e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint.

(3) The President is to give notice of a decision to accept or decline a complaint to—

(a) the person who made the complaint, and

(b) if the respondent has been given notice of the complaint, the respondent,

so far as is reasonably practicable, within 28 days after the decision is made.

(4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.

28. Once the President accepts a complaint under s 89B of the AD Act, the President must then investigate the complaint under s 90. Under s 90A, if the complaint to be investigated is a vilification complaint, the President may require a person to produce a copy or transcript of any broadcast the subject of the complaint at a specified place.

29. Under s 91A, if the President is of the opinion that a complaint, other than a complaint the President has declined under s 92, may be resolved by conciliation, the President may at any stage after acceptance of the complaint, seek to resolve the complaint by conciliation.

30. Under s 92, the President may also decline the complaint or part of it during the investigation of the complaint. The reasons the President may decline the complaint are set out in s 92(1)(a). Section 92 provides:

92 President may decline complaint during investigation

(1) If at any stage of the President’s investigation of a complaint—

(a) the President is satisfied that—

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2) The President, in a notice under this section, is to advise the complainant of—

(a) the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.

31. In some circumstances, the President may be required to refer the complaint to NCAT at the request of a complainant (see ss 93A and 93B). Section 93C then provides:

93C Other referral of complaints to Tribunal

If the President—

(a) is of the opinion that a complaint cannot be resolved by conciliation, or

(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or

(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, or

(d) is satisfied that all parties wish the complaint to be referred to the Tribunal and that it is appropriate in the circumstances to do so,

the President is to refer the complaint to the Tribunal.

Note—

The President may also refer a complaint to the Tribunal under section 90B (5).

32. Where a complaint is referred to NCAT, NCAT then possesses the functions set out in Part 9, Division 3 of the AD Act. Importantly, s 29(1) of NCAT Act states that NCAT has “general jurisdiction” over a matter where enabling legislation empowers NCAT “to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter” (s 29(1)(a)).

33. Section 102 of the AD Act sets out NCAT’s powers to summarily dismiss a complaint at any stage in the proceedings. Section 108 of the AD Act sets out NCAT’s powers to dismiss a complaint at a final hearing. If NCAT finds that a complaint is substantiated, there are several remedies available to it including that it may order that the complainant be paid damages not exceeding $100,000, be granted injunctive relief, order than an apology be published or a retraction made, or order that a program or policy is implemented.

Judicial consideration of s 49ZT

34. Given that the plaintiff’s submissions include assertions as to how s 49ZT should be interpreted, it is relevant to note some decisions of the NSW Court of Appeal in which the vilification provisions of the AD Act have been considered.

35. In Sunol v Collier (No. 2) [2012] NSWCA 44, the Court of Appeal considered the equivalent provision in relation to racial vilification. The word “incite” within s 49ZT was interpreted at [26]-[33] and [41]. At [28], Bathurst CJ observed the following:

“… it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions…”

36. At [41], Bathurst CJ summarised the construction of s 49ZT as follows:

“In these circumstances, s 49ZT should be construed as follows:

(a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.

(b) It is not necessary for a contravention that a person actually be incited.

(c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.

(d) It is not necessary to establish an intention to incite.

(e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.

(f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.”

37. Allsop P noted at [57] that the subject matter and mischief to which Part 4C was directed are identified in the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the NSW Anti-Discrimination Board entitled “Discrimination and Homosexuality” published in 1982. His Honour observed that this subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women; and that the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour. A review of the second reading speech demonstrates that there was an acute awareness throughout of the possibility of vilification occurring via media (e.g. radio and television), and that the paramount emphasis was on protecting the homosexual community within NSW.

38. The word “incite” was also considered in Jones v Trad (2013) 86 NSWLR 241; [2013] NSWCA 389 in the context of the equivalent provision in relation to racial vilification. Again, the Court held that an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (at [53]) and there can be no incitement in the absence of an audience (at [54]-[55]). Further, in ascertaining the particular class to whom the act is directed, the audience or likely audience must be identified and considered (at [62], [63]).

39. In Margan v Manias [2015] NSWCA 388, the Court considered the word “incite” in the context of s 49ZT. In reliance on Sunol v Collier and Jones v Trad, it was held that it means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (at [11]). It was further held that for there to be a contravention of s 49ZT it is not necessary to establish that anyone was incited: (at [12]) but there must be an audience to the public act (at [61]). The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs, including the temporal and geographic context and the audience (at [55], [88], [97]). There can be no incitement in the absence of an audience (at [76]).

NCAT is not invested with diversity jurisdiction

40. In Burns v Corbett (HC), the High Court dismissed a series of appeals from the Court of Appeal, including one brought by Mr Burns against Mr Gaynor: Burns v Corbett(CA). The High Court held that ss 28(2)(a) and (c), 29(1) and 32 of the NCAT Act were invalid to the extent that they purported to confer jurisdiction upon NCAT, in circumstances where the complainant and the respondent to the relevant complaint were “residents of different States” within the meaning of s 75(iv) of the Commonwealth Constitution.

41. It is not necessary to consider the respective pathways the court took to arrive at that decision. What is relevant, however, is that the High Court held that NCAT lacked jurisdiction to determine disputes between residents of different states because to do so would be the impermissible exercise of federal judicial power by a body other than a Chapter III court.

42. Prior to the hearing in the High Court, the NSW Parliament passed the Justice Legislation Amendment Bill (No 2) 2017 (NSW) which introduced a new Part 3A into the NCAT Act in response to the difficulties identified by Court of Appeal. Part 3A provides a mechanism for matters to be heard by an authorised court (either the Local Court or the District Court), instead of NCAT.

43. Section 34B(1) provides that a person with standing to make an application to NCAT may, with the leave of an authorised court, make the application or appeal to the court instead of NCAT but, by s 34B(2), the authorised court may only grant leave if it is satisfied of a number of matters, relevantly including that the determination of the application by NCAT would involve an exercise of federal jurisdiction (and therefore that NCAT would lack jurisdiction to determine the application).

44. Section 34B of the NCAT Act provides:

34B Applications or appeals involving federal jurisdiction may be made to authorised court

(1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal.

(2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that—

(a) the application or appeal was first made with the Tribunal, and

(b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and

(c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and

(d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court.

(3) An application for leave must be—

(a) filed with the authorised court along with—

(i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and

(ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37—a copy of the terms of settlement, and

(b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal.

(4) If an appeal is made under this Act in relation to any matter in issue in the application or appeal—

(a) for an appeal lodged before the application for leave is made to an authorised court—the court cannot grant leave unless and until the appeal is determined, or

(b) for an appeal lodged on or after leave is granted by an authorised court—proceedings in the court concerning the application or appeal are stayed until the appeal made under this Act is determined.

(5) An authorised court may remit an application or appeal to the Tribunal to determine the application or appeal if the court is satisfied that the Tribunal has jurisdiction to determine it. The court may do so instead of granting leave or after granting leave.

(6) An authorised court that remits an application or appeal to the Tribunal may make such orders that it considers appropriate to facilitate the determination of the application or appeal by the Tribunal.

(7) The Tribunal is to determine any application or appeal that is remitted to it in accordance with any orders made by the authorised court.

…

45. Under s 34C of the NCAT Act, the authorised court will possess all of the jurisdiction and functions NCAT would have possessed had it been endowed with federal jurisdiction.

46. The effect of the operation of Part 3A of the NCAT Act is that there is now a mechanism to resolve the controversy between Mr Burns and Mr Gaynor in the event that NCAT lacks jurisdiction. The practical effect of these amendments is that if a resident of NSW wishes to bring a complaint against a resident of another State or Territory, he or she must first lodge the complaint with the ADB who will then, if appropriate, refer it to NCAT. This includes cases where it is common ground that NCAT does not have jurisdiction to hear it because the respondent resides outside of NSW. The legislation does not provide a mechanism for NCAT to then refer the complaint to the authorised court. Rather, the complainant is then apparently informed that NCAT has no jurisdiction (a fact known to the complainant prior to lodging the complaint) and the complainant must then lodge the complaint in the Local Court. The complainant must go through this procedure before being able to lodge a complaint in an authorised court.

47. Under s 34B(2) of the NCAT Act, the authorised court may grant leave for the application to be made but only if satisfied of the four matters enumerated under that subsection, one of which is that the application was first made to NCAT.

Submissions

The plaintiff’s submissions

48. Mr Gaynor’s central premise was that the Delegate had no jurisdiction to accept Mr Burns’ complaint. It was effectively submitted that the Delegate “rubber stamped” the complaint without properly considering the relevant criteria. So much is apparent, it was submitted, by the supplementary reasons provided on 29 July 2024, which do not correlate with the statutory criteria.

49. It was submitted that there are in fact five criteria which must be satisfied before a complaint is accepted:

1. A written complaint;

2. An identifiable respondent;

3. A complaint that alleges a breach of the vilification provisions of the AD Act by the identified respondent;

4. A “public act” by the respondent in NSW; and

5. The respondent’s residence in NSW.

50. It was submitted that each of criterion (4) and criterion (5) were jurisdictional facts, the satisfaction of which was necessary in order to enliven the power of the Delegate granted by s 89B of the AD Act. It was submitted that these jurisdictional facts were not satisfied and thus the Delegate fell into jurisdictional error in accepting the complaint.

51. The plaintiff accepted that the common law presumption against extraterritoriality is a principle of construction and that the correct approach is to interpret the relevant statute to determine whether that presumption has been displaced. Reliance was placed on the principles derived from Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101 (“Chubb Insurance”) at [145]-[146] and DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (“DRJ”): when considering whether a provision applies extraterritorially, the “central concern” or “hinge” around which a particular statute operates, must be identified and given its “proper construction”, taking into account its context and subject matter.

52. It was submitted that the hinge around which the homosexual vilification provisions operate is the commission of a public act by a person. That this is so is ascertained from the phrase “... for a person, by a public act, to incite …” in s 49ZT. It was submitted that it is the location of the person who commits the prohibited public act that is central to the operation of these provisions. It was submitted that the language of s 87A(1) and s 49ZT(1) also supports this interpretation. The opening words of s 87A(1) are “[a] complaint alleging that a named person has, or named persons have, contravened a provision of this Act”. The opening words of s 49ZT(1) are “[i]t is unlawful for a person, by a public act, to incite ...”. It was submitted that it is not the results or consequences of the public act that is prohibited by s 49ZT but rather the conduct of a person, being their public act that has a capacity to incite.

53. Further, in reliance on the principles derived from the decisions of the Court of Appeal as to what “incite” means in this statutory context (to which I have already referred), it was submitted that if actual incitement of a person is not necessary and that the capacity to incite is to be judged objectively, then incitement could not be the relevant hinge.

54. The plaintiff submitted that a similar position has been taken in the criminal law with respect to conduct offences and result offences where the relevant distinction seeks to preserve the presumption against extra-territorial effect where the offending conduct that is alleged has characteristics that crosses State borders. Reliance was placed on the observations of Gleeson CJ in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83F-G, 84C and 87G where his Honour concluded that the relevant offences were result offences and that the purpose of the legislation was to prevent the occurrence in NSW of a certain consequence, being pollution in NSW. The relevant conduct in that case was spraying by a farmer on his Queensland property that resulted in a significant fish kill in the Barwon River which straddled the border between Queensland and NSW. An analogy was also sought to be drawn with principles of defamation law.

55. Overall, it was submitted that there are no necessary implications that rebut the statutory presumption against extraterritoriality in s 49ZT. Nor, it was submitted, does a reading of the AD Act assist; it could not be said that the legislative purpose would be frustrated or that a contrary intention is indicated by “the object, subject matter or history of the enactment”.

56. Significant reliance was placed on the decision of Principal Member, D Patten, in Burns v Gaynor where it was held that publication on the internet by a person situated in a state other than NSW was not a public act in NSW.

57. It was submitted that the fifth criterion before a complaint can be accepted is the residency of the respondent. In reliance on the decision of the High Court in Burns v Corbett (HC), it was submitted that residency is a jurisdictional precondition. It was submitted that the High Court held, in effect, that the ADB has no jurisdiction to accept a complaint made against a resident of another state. It was submitted that if NCAT has no power to finally adjudicate the referred controversy, then the investigating authority can have no authority to investigate or resolve by conciliation that same controversy. Accordingly, residency is an antecedent requirement of acceptance of a complaint that must be ascertained by the Delegate.

58. It was submitted that each of criterion (4) and (5) were objectively ascertainable prior to acceptance and were essential for, and are antecedent to, the exercise of the power granted by s 89B of the AD Act. The plaintiff noted the decisions of Enfield City v Development Assessment Commission (2005) 199 CLR 135; [2005] HCA 5 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [37]-[44] in this regard.

59. It was accepted that the jurisdictional facts of the public act having to be performed in NSW and the residency status of the parties to the dispute are not to be found in the language of s 89B. Despite this, it was submitted that they are facts that must be determined prior to the exercise of that power, the failure of which renders the decision to accept it invalid. It was submitted that the fact that neither criterion was considered by the Delegate is apparent from the reasons of 15 April 2024 as supplemented by the letter of the Crown Solicitor’s Office dated 29 July 2024.

60. Given that the power to refer the complaint to NCAT rests upon there having been a validly accepted complaint, it was submitted that the consequence of the invalid acceptance of the complaint is that there was no jurisdiction to refer the matter to NCAT.

61. It was further submitted that it is doubtful that the Delegate truly exercised the discretion pursuant to s 93C of the AD Act in any event given the additional reasons contained in the letter of 29 July 2024. That letter contains an additional reason for referral that was not included in the reasons provided on 15 April 2024. That additional reason was that the complaint could not be resolved by conciliation. That additional reason was the only reason recorded in the recommendation created by the responsible officer and given to the Delegate requesting endorsement of the reasons for decision given on 15 April 2024. Further, the only reason for referral given in the Report produced by the President (pursuant to s 94A(2) of the AD Act) and received by NCAT on 8 May 2024 is that the complaint was “[r]eferred under section 93C(a) because the Delegate is satisfied that the complaint cannot be resolved by conciliation”.

The Attorney General’s submissions

62. The Attorney General’s position was that these proceedings should be dismissed for the following principal reasons.

63. First, on the correct construction of ss 89B and 93C, the President was not required to decide, at the stage of determining whether to accept the complaint, or at the stage of determining whether to refer the complaint to NCAT, whether there was a public act in NSW, amounting to a jurisdictional fact, as a precondition to jurisdiction.

64. Secondly, the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the incitement, which necessarily requires attention to be paid to the audience who received Mr Gaynor’s internet publication. If that is so, then the President did not make any jurisdictional error of the kind asserted by Mr Gaynor in deciding to accept the complaint and refer it to NCAT.

65. Thirdly, in the alternative, the relevant hinge for the purposes of assessing the extraterritorial effect of s 49ZT is the location of those against whom the feelings of hatred, revulsion, serious contempt for, or serious ridicule were felt. Again, if that is so, then the President did not make any jurisdictional error of the kind asserted by Mr Gaynor in deciding to accept the complaint and refer it to NCAT.

66. Fourthly, even if the Court accepts Mr Gaynor’s argument that the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the relevant public act, then the President did not make a jurisdictional error in accepting the present complaint and referring it to NCAT. That is because it is at least strongly arguable that the public act occurred at least in part in NSW.

67. Finally, there is no jurisdictional precondition arising from the High Court decision in Burns v Corbett(HC) to the effect that the respondent to a complaint must be a resident of NSW for the President to validly exercise administrative functions in relation to that complaint.

68. It was submitted that the discretion under s 89B(1) of the AD Act to determine whether or not a complaint is to be accepted or declined is relevantly unconfined. Nor should the discretion to refuse an application in s 89B(1) be confined to the circumstances set out in s 89B(2)(a)-(e). Section 89B(2) should not be interpreted as requiring the President to decline a complaint if one or more of s 89B(2)(a)-(e) are satisfied. These examples serve to provide express examples of where the President may decide to decline a complaint. Further, it was submitted that these express examples (provided in (a)-(e)) are all matters which could be identifiable on the face of the complaint.

69. Reliance was placed on the fact that there is a further power for the President to decline a complaint during the investigation process: s 92. The bases upon which the President is expressly empowered to decline a complaint during investigation as listed in s 92(1)(a) are noticeably broader than their equivalents in s 89B(2) in respect of the decision to decline a complaint at the stage of initial receipt.

70. It was noted that s 89B does not provide that the public act must be performed in NSW nor the residency status of the parties. It was submitted that the court would not find them to be implied jurisdictional facts as to do so would be inconsistent with the scheme in Part 9, Divisions 2 and 3.

71. The Attorney relied on Leeming JA’s observation in Gaynor v Attorney General at [138], that the President performs non-judicial functions when exercising her functions under Division 2 (such as investigating or attempting conciliation). However, the judicial function of resolving the complaint according to law is assigned to NCAT under Part 9, Division 3 (or, if NCAT lacks jurisdiction, to an authorised court under Part 3A of the NCAT Act).

72. It was noted that it is well established that when a judicial decision-maker is asked to summarily dismiss a claim on the basis of lack of territorial connection, there must be a high degree of certainty about the ultimate outcome of the proceeding in order to do so, which is why the issues raised in those proceedings should not be decided in a summary way except in the clearest of cases: see Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57].

73. It was submitted that even if the Delegate was authorised to consider the question of territoriality, this is not such a clear case as to make it appropriate to do so because there are very strong arguments that there was a sufficient territorial connection for Mr Gaynor’s conduct to constitute a contravention of s 49ZT of the AD Act. The appropriate venue for arguments about extraterritoriality to be ventilated and ultimately resolved is an authorised court under Part 3A of the NCAT Act, being the body to whom the legislative scheme assigns the function of determining the dispute.

74. The Attorney General identified other decisions of NCAT and its interstate equivalents considering and determining territorial questions: Corbett v Burns [2014] NSWCATAP 42; Burns v Gaynor; Bottrill v Sunol [2017] ACAT 81; Farah v Sandilands [2021] ACAT 92; Sunol v Kerslake (Appeal) [2024] ACAT 35; Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited [2024] QCAT 201. It was submitted that in none of them did any of the Tribunals raise an issue as to whether the complaint ought to have been dismissed by the President or her interstate equivalent even before the Tribunal came to consider the issue.

75. Given that it was common ground that the AD Act does not contain any express provision concerning its territorial reach, it was submitted that the question is to be determined by statutory construction. Reliance was placed on the relevant principles as stated in Karpik v Carnival plc [2023] HCA 39; (2023) 98 ALJR 45 at [19] and the summary of the relevant principles by Gordon, Edelman and Stewart JJ in BHP Group Ltd v Impiombato (2022) 276 CLR 611; [2022] HCA 33 at [59], [61]-[62]. It was further submitted that changing times have led to dramatic diminishment in concern for extraterritorial operation of laws.

76. It was noted that DRJ, BHP v Impiombato and Karpik v Carnival plc concerned asserted international extraterritoriality. In Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 242, Malcolm CJ concluded that the presumption may not be as strong within Australia as it is in relation to places outside Australia. That is because of the fact that the states and territories exist in a federation where there is likely to be frequent movement of people between states and a commonality of problems requiring cooperative solutions. It was submitted that this principle has significant force in the present case.

62. It was submitted that the resolution of the question of the hinge of s 49ZT requires consideration of the various components of the provision. The provision has regard not merely to the person performing the public act (the ‘inciter’); but also the audience for the public act; and also those towards whom the feelings of hatred, revulsion, serious contempt for, or serious ridicule were directed: Gaynor v Attorney General at [66]-[67]:

63. It was submitted that the Court would not find that the hinge around which the homosexual vilification provisions operate is the commission of a public act by a person. Rather, the Court should find that the relevant hinge is the incitement which the provision proscribes, which in turn directs attention to the audience of that incitement. Section 49ZT provides: “It is unlawful for a person, by a public act, to incite…” (emphasis added).

64. It was submitted that s 88B of the AD Act reflects the beneficial nature of the legislation by seeking to ensure that applicants are always able to access the appropriate jurisdiction for their claim, regardless of whether they may have already made a complaint, possibly incorrectly, in another jurisdiction.

65. In the alternative, it was submitted that the Court would find that the relevant hinge is the location of those against whom the feelings such as hatred were felt. This alternative hinge was said to reflect the statutory purpose of s 49ZT, namely, to protect homosexual persons from vilification. It was submitted that this legislative intent lends support for the construction that the legislature intended to proscribe conduct where those effects were felt in NSW. Otherwise, they would have no remedy under NSW law. Such an outcome is inconsistent with the beneficial intention of the AD Act. Reliance was placed on the line of cases in the ACT Civil and Administrative Tribunal to this effect: see Bottrill v Sunol. Similarly, see Farah v Sandilands [2021] ACAT 92 and Sunol v Kerslake (Appeal).

66. It was next submitted that even if the Court accepts that the relevant hinge is the location of the public act, it does not follow that the relevant act in the present case was not committed in NSW given the observations of Bell P (as his Honour then was) in Gaynor v Attorney General at [67] and in Corbett v Burns [2014] NSWCATAP 42. Further, the Attorney provided examples of interstate Tribunals adopting similar positions: Baxter v Air New Zealand [2012] VCAT 1666 at [35]-[39] and Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited at [32]-[47].

67. It was submitted that even if the Court finds that the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the location of the public act, the President did not make a jurisdictional error in accepting the present complaint and referring it to NCAT. That is because it is strongly arguable that the public act occurred at least in part in NSW. As noted above, that was not an issue which the President could have been expected to resolve at the stage of accepting the complaint. Rather, it is a matter which ought to be resolved by the body which hears and resolves the dispute.

68. Finally, it was submitted that it is not a jurisdictional precondition that the respondent must be a resident of NSW. It was submitted that the plaintiff’s submission to the contrary fundamentally misunderstands the decision of the High Court in Burns v Corbett(HC) and to the extent that an aspect of that decision is in dispute, the Attorney General issued notices as required by s 78B of the Judiciary Act. No recipient indicated that they wished to be heard.

69. It was further submitted that Mr Gaynor’s argument overlooks Part 3A of the NCAT Act. Mr Gaynor argues that if there is no body with jurisdiction to resolve a complaint, then the President of the ADB can have no authority to accept that complaint, investigate it, or resolve it by conciliation. It was submitted that the premise of this argument is unsound.

Consideration

85. The plaintiff’s challenge to the validity of the two decisions is premised on the assertion that the two identified facts (described in submissions as criteria 4 and 5) are jurisdictional in nature. As the High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) observed in Enfield City v Development Assessment Commission at [28], “[t]he term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.” Thus, it was accepted that the plaintiff must establish that the fact of where the respondent to the complaint resides and that the relevant public act (within the meaning of s 49ZT of the AD Act) occurred in NSW are prerequisites to be satisfied before the discretionary power to accept a complaint under s 89B of the AD Act can be exercised.

86. As Spigelman CJ observed in Timbarra Protection Coalition v Ross Mining NL at 64, a jurisdictional fact must have an objective existence in the sense that it exists in fact and the existence of the fact must be essential to the validity of the action under the relevant act.

87. The plaintiff’s counsel accepted during the hearing that if I was satisfied that the Delegate had jurisdiction to accept the complaint then it followed that she had jurisdiction to refer it to NCAT; in other words, success in challenging the second decision depended on the plaintiff successfully challenging the first decision.

88. I propose to deal first with the plaintiff’s contention that it is a jurisdictional fact that the respondent to a complaint must reside in NSW. Not only am I not satisfied that this is a jurisdictional fact, I am also not satisfied that the plaintiff’s contention correctly states the scope and operation of ss 89B and 49ZT of the AD Act.

89. The plaintiff has not established that it is a precondition to the exercise of the President’s discretion to accept a complaint about s 49ZT under s 89B of the AD Act that the respondent must be a resident of NSW for the following reasons.

90. First, there is nothing in the statutory language of s 49ZT or 89B that expressly identifies that the respondent’s residency is a necessary prerequisite to the exercise of the Delegate’s power to accept the complaint.

91. Secondly, the plaintiff’s argument misapprehends what the High Court held in Burns v Corbett (HC). The High Court held that NCAT lacked jurisdiction to determine disputes between residents of different states because to do so would be an impermissible exercise of federal judicial power by a body other than a Chapter III court. The preliminary steps required by the President (or delegate) of the ADB including accepting the complaint and referring complaints to NCAT are administrative in nature, not judicial. To the extent that any authority is needed for that conclusion, I note that in Gaynor v Attorney General each of Bell P (at [55]), Basten JA (at [94]-[99]) and Leeming JA (at [124], [138]) held that such preliminary administrative steps could permissibly be undertaken by the President or by NCAT independently of whether NCAT has jurisdiction to resolve the dispute.

92. Thirdly, the plaintiff’s submission that there is no body with jurisdiction to ultimately resolve a complaint where the respondent resides outside of NSW overlooks the enactment of Part 3A of the NCAT Act. As the plurality observed in Gaynor v Attorney General at [11]:

“It may be noted that Pt 3A of the NCAT Act commenced operation on 1 December 2017, four days before these appeals came on for hearing. It provides a mechanism for matters to be heard by an authorised court, instead of NCAT, if, upon an application for leave by a person with standing to make it, the court is satisfied that NCAT does not have jurisdiction to determine the application because its determination involves the exercise of federal diversity jurisdiction (s 34B). It is unnecessary to consider the operation of these new provisions further in order to determine these appeals.” (footnote omitted).

(Emphasis added.)

93. The Local Court and the District Court unarguably have jurisdiction to resolve disputes between residents of different states by virtue of the conferral of federal judicial power on them by s 39 of the Judiciary Act 1903 (Cth): Gaynor v Attorney General at [43].

94. For these reasons Ground 1(i) must fail.

95. As for Ground 1(ii), the plaintiff has not established that it is a precondition to the exercise of the President’s discretion to accept a complaint under s 89B of the AD Act that the relevant public act within the meaning of s 49ZT of the AD Act occurred in NSW either. The plaintiff accepted that there is nothing in the statutory language of s 49ZT or s 89B that expressly identifies this factor as a necessary prerequisite to the exercise of the Delegate’s power to accept the complaint. His position is that this jurisdictional fact should be implied as a matter of statutory construction.

96. I do not accept the plaintiff’s argument that the Delegate was required to definitively resolve this territorial question on a factual basis at the initial stage of deciding whether to accept the complaint under s 89B. There is no indication in the AD Act that Parliament intended that an administrative decision maker would be required to resolve this question at the preliminary stage of deciding whether to accept a complaint. When I questioned plaintiff’s counsel during the hearing as to how the Delegate was supposed to resolve this complex issue at the initial stage of accepting the complaint, he responded that there remains an obligation on the Delegate to “give it a go”.

97. Counsel in this matter filed lengthy and detailed submissions addressing the question of the extraterritorial effect of s 49ZT of the AD Act. The hearing before me proceeded for half a day. Although it is to be accepted that a complaint such as that made by Mr Burns against Mr Gaynor should not be “rubber stamped”, it is another matter entirely to require the President or a delegate of the ADB at the initial phase to determine difficult questions of statutory construction. If the plaintiff’s argument is to be accepted, then the Delegate should have approached the question in the same manner as the plaintiff did in order to arrive at the conclusion that the relevant hinge in s 49ZT was the location of the public act which, the plaintiff contended, was in Queensland and that that conclusion is a jurisdictional fact. In other words, if the plaintiff is correct then the President (or delegate) was required to undertake the following steps before accepting (or, as the plaintiff contends, rejecting) Mr Burns’ complaint.

98. First, on the plaintiff’s construction, the Delegate should have properly understood the common law presumption against extraterritoriality as explained in the decisions relied upon by the plaintiff including DRJ and Chubb Insurance and Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16.

99. Secondly, on the plaintiff’s construction, the Delegate should have been aware of the recent High Court decisions as to how that common law presumption can be displaced as a matter of statutory construction. Those cases include Karpik v Carnival plc where Gageler CJ, Gordon, Edelman, Gleeson and Jago JJ observed the following at [19] (citations omitted):

“The so-called common law ‘presumption’ against extraterritoriality – that subject to a contrary intent, words in a statute describing acts, matters or things in general words are to be read so as not to have extraterritorial effect – is an interpretive principle only. The same can be said of the aspect of that presumption that statutes are not intended to apply to matters that, under the rules of private international law, are governed by foreign law. Contrary to Princess' submissions, the presumption is not a fundamental common law right. Rather, the application and force of the presumption depends upon the extent to which the provisions of a statute depart from common expectations that Parliament’s concern with the subject matter is limited to matters within its territory. …. In sum, the application or consideration of the presumption cannot precede the question of interpretation – being whether the statute expressly or impliedly addresses the territorial reach of its subject matter.”

100. It follows that, on the plaintiff’s contention, the President (or delegate) should also have been aware of the relevant principles as recently summarised by Gordon, Edelman and Stewart JJ in BHP Group Ltd v Impiombato at [59] and [61] and [62] as follows (citations omitted):

“[59] In statutes, like the Federal Court of Australia Act, where there is no express provision relevantly addressing the territorial reach of the subject matter of the statute, the task is to identify the hinge (also referred to as the statutory springboard, general subject matter, object of legislative concern, central conception, character or central focus) of the statute and identify its territorial connection, if any. The applicable provisions, read in context, may have a hinge or subject matter with a clear territorial connection. That task – of identifying the ‘central focus’ of a statute – is purely a question of statutory construction. As Leeming JA said in DRJ v Commissioner of Victims Rights (No 2), the hinge or central focus is identified ‘as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection’.

…

[61] Only after identifying the hinge of the provisions and revealing the territorial connection (if any) of the subject matter, does the question of the application of the common law presumption against extraterritoriality arise. The so-called ‘presumption’ is an interpretive principle whose force depends upon the extent to which the hinge of the provisions departs from common expectations that Parliament's concern with the subject matter is limited to matters within its territory. Put another way, the general common law presumption of territoriality – that an enactment describing acts, events, matters or things in general words, so that, if constrained by no consideration lying outside its expressed meaning, its application would be universal, should not be understood as extending extraterritorially – is a rule of construction only and ‘it may have little or no place where some other restriction is supplied by context or subject matter [of the statute in issue]’. Whether a restriction is supplied by the context or the nature of the subject matter is a question of statutory construction which necessarily precedes the application of the presumption.

[62] This Court has never taken a uniform or mechanistic approach to applying the presumption. Where the hinge or the central focus of the subject matter is identified and it does not have a clear territorial connection (that is, it appears to be at large), the presumption will generally require that the hinge be construed as territorially limited, subject to a contrary intention. Where the central focus of the subject matter of the statute, on its proper construction, has a territorial connection, it will ordinarily be unnecessary to look for further territorial restrictions. The presumption has never been understood such that it needed to be applied to all elements or words in a statute.” (emphasis in original).

101. Thirdly, the plaintiff contends that the Delegate should have construed s 49ZT to determine whether the common law presumption has been displaced such that it applies extraterritorially by identifying the “central concern” or “hinge” around which the AD Act operates, taking into account its context and subject matter. I have already summarised the parties’ respective submissions on the identification of the hinge in s 49ZT: the plaintiff contends that the relevant hinge in s 49ZT is the commission of a public act by a person whereas the Attorney contended, inter alia, that the relevant hinge is the incitement. On the plaintiff’s argument, the Delegate was required to resolve that question of statutory construction at the threshold stage by looking at the text and context of the provision whist also having regard to the principles derived from the decisions of the Court of Appeal as to what “incite” means in this statutory context I have summarised above at [35]-[39].

102. Fourthly, the plaintiff explicitly contends that the Delegate should have been aware of the decision of Mr D Patten, Principal Member at NCAT, in Burns v Gaynor. Mr Gaynor successfully had one of Mr Burns’ previous complaints dismissed on the basis that it was found that the public act must be in NSW (at [12]) and that the posting of material on a computer in Queensland capable of being downloaded in NSW is not a public act in NSW within the meaning of s 49ZT. The principal member was referred in that case to Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (“Gutnick”) (and extracted [38]-[44] in his reasons) before concluding the following at [17]:

“In my opinion there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns’ argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion such a circumstance is beyond the reach of the NSW Parliament.”

103. If the President of the ADB (or delegate) was expected to know of that decision, then it follows that they should have been aware of any contrary authority including other decisions in which Mr Gaynor has run the same argument concerning the territorial nexus between the relevant public act and NSW for the purposes of s 49ZT. In Gaynor v Local Court of NSW, Mr Gaynor challenged the validity and operation of s 34B on a number of grounds. Relevantly, he also raised the same argument as he does in the present proceedings, namely, that s 49ZS and s 49ZT of the ADR Act operate so as to deprive the Local Court of any jurisdiction to hear the proceedings unless the matters complained of involve or are concerned with a public act in NSW. Mr Gaynor’s challenge to s 34B before Harrison J (as his Honour then was) was unsuccessful and he sought leave to appeal to the Court of Appeal where he was also unsuccessful: Gaynor v Attorney General.

104. In refusing leave and dismissing the appeal, Bell P said this about Mr Gaynor’s extraterritoriality argument (which is relevantly the same argument as is raised in the present proceedings) at [60]-[67]. I have set these paragraphs out in full given how apposite they are to the present proceedings:

“[60] The argument advanced was that, as s 39 of the Judiciary Act invested State courts with federal jurisdiction but only within the limits of their several jurisdictions, whether such limits are as to ‘locality, subject matter or otherwise’, and because s 34 of the Local Court Act effects a limit on the Local Court’s territorial jurisdiction, the Local Court lacked jurisdiction to determine the diversity suit between Mr Gaynor and Mr Burns.

[61] This was not a constitutional argument nor was it, in truth, an argument that the Local Court was not a court of a State within the meaning of s 39(2) of the Judiciary Act. Rather, it was simply an argument that the Local Court lacked jurisdiction to hear any application by Mr Burns in the exercise of the Local Court’s federal diversity jurisdiction, because the Local Court’s subject matter jurisdiction was territorially limited by s 34 of its constituent Act to causes of action in which no material part of which arose in New South Wales.

[62] Ordinarily, a challenge to a court’s jurisdiction will be most appropriately and conveniently brought in the court whose jurisdiction is being challenged even though this Court’s supervisory jurisdiction may also be engaged to that end in an appropriate case.

[63] In rejecting Mr King’s territorial argument, the primary judge was correct, in my opinion, to observe (at [66]) that:

‘The evidence does not disclose precisely what Mr Burns’ complaints are or in what way those complaints are said to be connected with New South Wales.’

[64] His Honour went on to say (at [66]-[67]):

‘In those circumstances, I am not able to conclude that the Local Court proceedings fall beyond the territorial jurisdiction of the Local Court as extended by s 34 of the Local Court Act.

However, as the Attorney General points out, that does not mean Mr Gaynor could not argue that Mr Burns’ complaints had an insufficient nexus to the State of New South Wales with the result that Mr Gaynor’s conduct, if proved, would not amount to an offence under the Anti-Discrimination Act. That would be and remains a matter for determination by the Local Court.’

[65] I am in full agreement with the primary judge’s analysis.

[66] To entertain an argument of the kind sought to be put, the Court would have needed to consider each of the elements of the cause of action created by s 49ZT(1) of the ADA, namely what the ‘public act’ in question was, where it had occurred, and where the hatred towards, or serious contempt for, or severe ridicule of another person or group of persons was incited. In this context, ‘incitement’ has been held to mean ‘to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement’: Sunol v Collier (No 2) (2012) 260 FLR 414; [2012] NSWCA 44 at [41].

[67] The publication of material on the internet has been held to be a ‘public act’: Jones v Toben [2002] FCA 1150 at [73]-[75]; Collier v Sunol [2005] NSWADT 261 at [33]-[38]; see also Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14. The question of where such a publication is in fact ‘located’ for, inter alia, jurisdictional purposes is typically not free from complexity: see, generally, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (Gutnick). Indeed, the New South Wales Administrative Decision Tribunal in Collier v Sunol at [35] referred to Gutnick in stating that:

‘We would add that the “public act” of communicating the relevant material to the public via the internet clearly occurred in New South Wales, if not also in other jurisdictions. This was the State in which Mr Collier read and printed out all this material. The evidence shows any other person in New South Wales who used a browser to gain access to the relevant websites could do likewise.’

…

[69] In circumstances where, as the primary judge observed, a jurisdictional challenge may still be brought in the Local Court on the basis of, and by reference to, the causes of action before it, no injustice, let alone substantial injustice that would attract the grant of leave to appeal, was occasioned to Mr Gaynor, nor did any error of principle attend the primary judge’s discretionary decision to withhold relief in respect of the territorial argument: see, generally, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48.

[70] The attempt to challenge his Honour’s decision by reference to the territorial argument does not, in my opinion, merit the grant of leave to appeal.”

(Emphasis added.)

105. The observation by Bell P that the question of where a publication is in fact “located” for, inter alia, jurisdictional purposes is “typically not free from complexity” is pertinent to the question at the heart of the present application. Contrary to the plaintiff’s contention, not only is it not a straightforward question, but it is also certainly not one that the Delegate was obliged to resolve at the initial phase of determining whether to accept the complaint

106. I am satisfied that the President of the ADB is not required to decide, at the stage of determining whether to accept a complaint under s 89B or at the stage of determining whether to refer a complaint under s 93C, whether or not there was a public act in NSW, amounting to a jurisdictional fact as a precondition to jurisdiction. Rather, the President’s function under Part 9, Division 2 of the AD Act is to conduct “an initial sifting process” or to “filter” complaints. It is a matter for the body exercising judicial power (whether NCAT or an “authorised court” under Part 3A of the NCAT Act) to determine whether there was a public act in NSW, and whether that is the necessary criterion to establish jurisdiction under the AD Act.

107. A further difficulty with the plaintiff’s argument is that, as a matter of general principle, requiring the President to determine whether the complaint should be summarily dismissed at the initial filtering stage is at odds with the terms of s 89B of the AD Act. The matters the President may have regard to in exercising the discretion to decline a complaint under s 89B(2) of the AD Act are extracted above at [27]. The matters are all such that would be apparent on the face of the complaint. That includes s 89B(2)(a), which provides a basis for declining to accept the complaint as being that “no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations”. It seems to me that there would have to be something apparent on the face of the complaint that made it clear that one or more elements of s 49ZT could never be established in order for the President to decline to accept a complaint.

108. Further, the President has a separate power to summarily dismiss a complaint under s 92 of the AD Act.

109. The question of where a public act of publication is located falls to be considered in the context of the proliferation of publications that are placed online by Australians daily which can be read instantly across Australia. As Kirby P observed 30 years ago in Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 428:

“Modern means of transport and other forms of communication make an excessively narrow approach to territorial connection inappropriate and likely to defeat the intended operation of at least some State statutes.”

110. His Honour’s comments were made prior to the significant advances in technology that have occurred over the last 30 years and apply with even greater force now. As the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held in Gutnick at [44] (albeit in the context of defamation law):

“… In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.”

111. Although the plaintiff urged me to resolve the extraterritoriality question as part of my decision, I do not consider it necessary to do so in order to determine this matter. Although I consider there to be some force in the argument that the central concern with s 49ZT is the location of where the relevant material is viewed, I do not propose to make any final determination on this question. As was submitted on behalf of the Attorney General, Mr Gaynor will be free to make any arguments which he wishes to make concerning the territorial reach of s 49ZT of the AD Act at any final hearing. I am also satisfied that, as was Bell P in Gaynor v Attorney General, for me to resolve that ultimate issue now would amount to an unnecessary fragmentation of the ordinary appellate processes which are available to the parties.

112. Although the plaintiff initially submitted, as an additional argument, that it was futile for the matter to be referred to NCAT (because it is common ground that NCAT does not have the jurisdiction to hear this complaint), the plaintiff ultimately accepted, putting the extraterritorial argument to one side, that the only way that Mr Burns could have his complaint heard in the Local Court was to commence it with the ADB and have it rejected by NCAT.

113. It follows from my findings in relation to Grounds 1(i) and (ii) that the plaintiff has not established that the Delegate failed to take into account in respect of each decision relevant considerations, namely, that the jurisdictional facts set out above were not satisfied: Ground 2.

114. For completeness, I note that the plaintiff raised a number of discrete arguments concerning the adequacy of the reasons and the difference between the initial reasons and the supplementary reasons. I do not consider that these arguments go to the grounds in the summons alleging jurisdictional error.

115. The plaintiff has not established that the President of the ADB (or delegate) lacked jurisdiction to accept Mr Burns complaint for either of the reasons that Mr Gaynor was a resident of Queensland nor that the alleged public act was in Queensland. Nor has the plaintiff established that the Delegate fell into jurisdictional error in failing to take into account, in respect of each decision, that these two factors were not satisfied.

Orders

116. Accordingly, I make the following orders:

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.

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Amendments

17 June 2025 - [1] "Mr Burns" instead of "Mr Gaynor"

[3] "Mr Burns'" instead of "Mr Gaynor's"

[6] "the plaintiff's" instead of "the plaintiffs'"

Decision last updated: 17 June 2025