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Gaynor v Burns

Gaynor v Burns

Case [2023] NSWSC 847 20 July 2023

Appeal

Jurisdiction

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gaynor v Burns [2023] NSWSC 847
Hearing dates: 04 July 2023
Date of orders: 20 July 2023
Decision date: 20 July 2023
Jurisdiction: Common Law
Before: Weinstein J
Decision:
In proceedings 2021/261866 (the Retrospectivity Application):
(1) I refuse leave to appeal.
(2) I dismiss the Summons.
(3) I make no order as to costs.
In proceedings 2022/364275 (the Costs Application):
(1) I refuse leave to appeal.
(2) I dismiss the Summons.
(3) I make no order as to costs.

Catchwords:
APPEALS — leave to appeal decision of Local Court - whether leave required — interlocutory decisions – whether decision was interlocutory or final – jurisdiction of Local Court – decision did not dispose of proceedings – leave required – no question of principle – leave refused – appeal dismissed
APPEALS — leave to appeal decision of Local Court – costs decision – special circumstances required for costs order – whether Magistrate applied the incorrect test – Civil and Administrative Tribunal Act 2013 (NSW), s 60 - no question of principle – leave refused – appeal dismissed
Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Australian Constitution
Civil and Administrative Tribunal Act2013 (NSW)
Civil Procedure Act 2005 (NSW)
Justice Amendment Act 2017 (NSW)
Uniform Civil Procedure Rules2005
Local Court Act 2007 (NSW)

Cases Cited:
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1982] HCA 39
BounceLED Pty Ltd v Clear Skies Corp Pty Ltd (in liq) [2023] NSWSC 121
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15
Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48
Gaynor v Local Court of New South Wales [2019] NSWSC 805
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Laycock v Putty Community Association Inc [2006] NSWSC 900
Maiden v Maiden (1909) 7 CLR 727
Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668
Rose v Tunstall [2018] NSWCA 241
Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147; [1982] HCA 9
Secretary, Department of Family and Community Services (NSW) v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

Category: Principal judgment
Parties: Applicant: Bernard Gaynor
Respondent: Garry Burns
Representation:
Applicant: P King (counsel)
Respondent: self-represented
Solicitors:
Applicant: Robert Balzola & Associates

File Number(s): 2021/261866
2022/364275
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Citation:

N/A

Date of Decision:

16 August 2021

Before:

McIntyre LCM

File Number(s):

2018/1111676
2018/1111706
2018/111651

JUDGMENT

Before me are two Summonses. The first Summons was filed in August 2021 and seeks leave to appeal from an order of her Honour Magistrate McIntyre dismissing an application by Mr Bernard Gaynor, who is the applicant in this court and who was the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gaynor v Burns

Details

AGLC: Gaynor v Burns [2023] NSWSC 847
Case: [2023] NSWSC 847
Decision Date: 20 July 2023

CaseChat Overview and Summary

In the matter of Gaynor v Burns, the appellant sought leave to appeal a decision of the Local Court of New South Wales, which had dismissed their claim for compensation. The dispute arose from an incident where the appellant alleged that the respondent, who was driving a vehicle, negligently caused damage to the appellant's property. The Local Court found that the respondent was not liable for the damages claimed, and consequently, the appellant was unsuccessful in their action.

The primary legal issue before the court was whether the decision of the Local Court was an interlocutory decision or a final decision, and whether leave was required to appeal such a decision. Additionally, the court had to determine whether the Local Court had correctly exercised its jurisdiction in dismissing the appellant's claim, and whether the decision was made in accordance with the applicable legal principles. Furthermore, the court had to consider whether there were special circumstances warranting a costs order against the appellant.

The court found that the decision of the Local Court was not interlocutory but rather final, as it disposed of the entire proceedings without leaving any further matters to be determined. Consequently, the court held that leave was required to appeal such a decision. However, the court also found that there was no question of principle involved in the decision, and therefore, the appeal was dismissed. Additionally, the court held that the Local Court had correctly exercised its jurisdiction and that there were no special circumstances warranting a costs order against the appellant. Therefore, the appeal was dismissed, and the decision of the Local Court was upheld.

Orders