Supreme Court
New South Wales
Medium Neutral Citation: Gaynor v Burns (No 2) [2025] NSWSC 885 Hearing dates: On the papers. Date of orders: 8 August 2025 Decision date: 08 August 2025 Jurisdiction: Common Law Before: N Adams J Decision: (1) The notice of motion seeking a variation of the costs order I made on 12 March 2025 is dismissed.
(2) The plaintiff (applicant) is to pay the fourth defendant’s (respondent’s) costs of the motion.
Catchwords: COSTS – motion to vary costs order – where the Attorney-General of NSW intervened and was the only active contradictor – where the plaintiff failed to address on costs – whether Court should have made no costs order – motion dismissed
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act2013 (NSW)
Civil Procedure Act 2005 (NSW), s 98(1)
Judiciary Act1903 (Cth), s 78B
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1, Pt 42
Cases Cited: APFC No.1 Corporation v Insurance Australia Limited (No 2) [2024] NSWSC 818
Arjunan v Neighbourhood Association DP No 285853 (No 4) [2023] NSWCA 329
Arnold v Queensland [1987] FCA 148; 73 ALR 607
City of Burnside v Attorney General (SA) (1994) 63 SASR 65
Gaynor v Burns [2025] NSWCA 170
Gaynor v Burns [2025] NSWSC 185
Grygiel v Baine (No 2) [2005] NSWCA 434
Guss v Johnstone [2000] HCA 26; 74 ALJR 884
Hunter’s Hill Council v Minister for Local Government [2017] NSWCA 188
Johnston v Cameron [2002] FCAFC 301
Liverpool City Council v Weir (1984) 58 ALJR 213
Marium v Registrar Local Court Blacktown [2022] NSWSC 528
Mawhinney v Australian Securities and Investments Commission (No 2) [2022] FCAFC 205
Mohareb v State of New South Wales (No 2) [2024] NSWCA 69
Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878
Naqebullah v State of Victoria [2024] VSCA 307
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Ruddock v Varlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865
Tonto Home Loans Australia Pty Ltd v Tavares (No 2) [2012] NSWCA 129
Xat Ky v Australvic Property Management Pty Ltd (No 2) [2007] FCA 1785
Category: Costs 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:
Solicitors:
Mr R Rasmussen (Plaintiff)
Mr D Birch (Fourth Defendant)
Robert Balzola and Associates (Plaintiff)
Crown Solicitor’s Office (Fourth Defendant)
File Number(s): 2024/00200704 Publication restriction: Nil.
JUDGMENT
-
On 12 March 2025, I delivered my judgment in this matter: Gaynor v Burns [2025] NSWSC 185. The plaintiff was unsuccessful. I ordered that he pay the costs of the fourth defendant, who was the only active contradictor. On 21 March 2025, I went on extended…
Keep reading for free
Create a free CaseChat account to read Gaynor v Burns (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2025] NSWSC 885
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the court should have exercised its discretion to make no costs order given the circumstances of the case, particularly the plaintiff's failure to address the court on costs and the Attorney-General's intervention as the only active contradictor. The court also needed to consider the appropriateness of the costs order made in the original proceedings.
In deciding the matter, the court examined the discretion it has to make no costs order under relevant legal principles. The court noted that the plaintiff's failure to address the court on costs was significant and that the Attorney-General's intervention was the sole opposition to the motion. The court concluded that it was appropriate to dismiss the motion to vary the costs order. The court found that the original order for costs was not unjust and that there was no compelling reason to alter it in light of the circumstances.
The court dismissed the motion to vary the costs order, affirming that the original order remained in place. The court did not see fit to make a no costs order, but it did not alter the existing costs order. The decision underscored the importance of parties addressing the court on costs and the court's discretion in such matters.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.