(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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.