Gaynor v Burns (No 2) - [2025] NSWSC 885

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:
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.

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…

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.

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Details

Case: [2025] NSWSC 885
Decision Date: 08 August 2025

CaseChat Overview and Summary

The case of Gaynor v Burns (No 2) involved a motion to vary an order for costs. The Attorney-General of New South Wales intervened in the case, and they were the only party actively opposing the motion. The plaintiff did not address the court on the issue of costs. The court was tasked with determining whether it should have made no costs order in light of these circumstances.

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