Gaynor v Burns

1. [1]

   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 below. That application was a challenge to the jurisdiction of the Local Court on the basis that certain enabling legislation did not have retrospective effect (the Retrospectivity Application). The second Summons, filed in December 2022, seeks leave to appeal from her Honour’s costs orders (the Costs Application) after Mr Gaynor succeeded in the Local Court on the merits.

2. [2]

   The respondent to both the Retrospectivity Application and the Costs Application was Mr Garry Burns, who was the plaintiff in the Local Court. He filed submitting appearances in both matters in this court pursuant to r 6.11 of the Uniform Civil Procedure Rules 2005 (UCPR). He appeared in person both in this court and in the Local Court. I granted him leave to withdraw his submitting appearance in the Costs Application pursuant to r 12.5 of the UCPR so that he could make submissions. Mr King of counsel appeared for the applicant in both matters.

Background

1. [3]

   The proceedings have a long and tortuous history. I will outline the background only insofar as it is relevant to the Summonses before me, observing that it is unnecessary to cover the entire procedural history and the many appeals in this matter.

2. [4]

   Mr Burns lives in New South Wales and is a self-described gay Australian anti-discrimination activist. Mr Gaynor resides in Queensland and is a conservative political blogger who runs a website and a Facebook page. They have been involved in a long-running dispute involving claims of vilification and victimisation.

3. [5]

   In 2014, Mr Burns made a number of complaints against Mr Gaynor and Ms Therese Corbett to the Anti-Discrimination Board of New South Wales pursuant to s 49ZT of the Anti-Discrimination Act 1977 (NSW). The Board referred 23 of these complaints to the NSW Civil and Administrative Tribunal (NCAT).

4. [6]

   Prior to NCAT’s determination of the merits, Mr Burns and Ms Corbett challenged the jurisdiction of NCAT to hear a dispute where that dispute involved parties from two different States. The proceedings were eventually appealed to the High Court, which held that, pursuant to Chapter III of the Australian Constitution, the relevant provisions conferring jurisdiction onto NCAT, being ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), were invalid to the extent that they purported to confer jurisdiction upon NCAT in relation to disputes between residents of different States: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns v Corbett).

5. [7]

   Four days before the hearing in the High Court, the Parliament of New South Wales passed the Justice Amendment Act 2017 (NSW), which inserted Part 3A into the NCAT Act. These new provisions provided a mechanism for a person with standing to apply for leave to an authorised court to hear a matter, rather than NCAT, if that court was satisfied that NCAT did not have jurisdiction to determine the application because it involved federal jurisdiction.

6. [8]

   In 2018, about 4 years after the original complaints had been made by Mr Burns, NCAT declined to determine Mr Burns’s complaints. Mr Burns then sought leave to commence proceedings in the Local Court of New South Wales (the Substituted Proceedings) by filing a Summons on 3 April 2018. Mr Gaynor then challenged the validity of s 34B of the NCAT Act and the jurisdiction of the Local Court to hear the matter in this court. The application was dismissed by Harrison J in Gaynor v Local Court of New South Wales [2019] NSWSC 805. An appeal was dismissed by the Court of Appeal: Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48.

7. [9]

   On 6 October 2020, Mr Burns was granted leave by Magistrate McIntyre to commence the Substituted Proceedings in the Local Court. On 5 March 2021, pursuant to orders made by her Honour, Mr Burns filed an Amended Statement of Claim outlining the claims against Mr Gaynor. He alleged three separate instances of vilification and victimisation, one which allegedly occurred in 2016 and another two which allegedly occurred in 2014. The allegations related to a comment on Mr Gaynor’s Facebook page and an article published by Mr Gaynor on his blog.

8. [10]

   A hearing on the merits was delayed again when Mr Gaynor put on a motion arguing that Part 3A did not have retrospective effect. He argued that the Local Court lacked jurisdiction to hear the matter brought by Mr Burns, as the relevant alleged instances of vilification and victimisation occurred before 2017 when the NCAT Act was amended to include Part 3A. This motion (the Retrospectivity Application) was heard on 15 and 16 June 2021. Her Honour dismissed the Retrospectivity Application on 16 August 2021. Mr Gaynor filed the Summons seeking leave to appeal her Honour’s decision to dismiss the Retrospectivity Application in this court on 13 September 2021. No further action was taken to pursue the Summons.

9. [11]

   On 2 September 2022, after a hearing on the merits, her Honour found that the complaints made by Mr Burns were not made out and she dismissed the proceedings. On 4 November 2022, her Honour determined, pursuant to ss 34C(4)(e)(iv) and 60 of the NCAT Act to make no orders as to costs.

10. [12]

    The applicant now, almost 2 years after her Honour determined the Retrospectivity Application in 2021 and after succeeding on the merits, seeks leave to appeal her Honour’s determination with respect to the Retrospectivity Application. The applicant separately seeks leave to appeal her Honour’s costs determination.

Legislation

1. [13]

   The Local Court Act 2007 (NSW) (the LCA) relevantly provides:-

2. [14]

   Part 3A of the NCAT Act relevantly provides:-

3. [15]

   Section 60 of the NCAT Act relevantly provides:

The Retrospectivity Application

1. [16]

   A preliminary question which arises is whether or not the orders made by her Honour with respect to the Retrospectivity Application were interlocutory or final. If the orders made by her Honour were interlocutory, then pursuant to s 40(2)(a) of the LCA, the applicant requires leave to appeal.

2. [17]

   In his 2021 Summons, the applicant explicitly sought leave to appeal. However at the hearing, Mr King submitted that the appeal was as of right pursuant to s 39 of the LCA and that leave was not necessary. He contended that the decision with respect to the Retrospectivity Application was not interlocutory, but final. Further, he submitted that the appeal was not out of time as the 2021 Summons was filed within the requisite time period even if it was not pursued.

3. [18]

   The classification of an order as “final” or “interlocutory” is a vexed legal question. In Hall v Nominal Defendant (1966) 117 CLR 423 at 440; [1966] HCA 36, Taylor J said of an interlocutory order:

4. [19]

   The question is whether the order finally disposes of the rights of the parties: Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152; [1982] HCA 9. Mr King correctly, in my view, contended that her Honour decided the question of retrospectivity as a separate question pursuant to part 28 of the UCPR, even if the rules were not specifically mentioned. However, this does not assist the applicant. Her Honour’s decision regarding the Retrospectivity Application did not finally dispose of the parties’ rights. This is clear from the fact that her Honour went on to determine the proceedings on its merits in the applicant’s favour.

5. [20]

   Further, it has been recognised that a preliminary decision on jurisdiction is interlocutory: Laycock v Putty Community Association Inc [2006] NSWSC 900 at [22] per Hoeben J. In my view, it is correct to characterise her Honour’s decision as one concerning the jurisdiction of the Local Court to hear the matter.

6. [21]

   In my opinion, the Retrospectivity Application was interlocutory, and the applicant has no appeal as of right. On the contrary, the applicant requires leave to appeal.

7. [22]

   The decision to grant leave is discretionary and should be done on a preliminary basis prior to the consideration of the merits of the application. A party seeking leave must point to something more than an arguable error. The High Court has expressly stated that it is unnecessary to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39. The principles were outlined by the NSW Court of Appeal in Secretary, Department of Family and Community Services (NSW) v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

8. [23]

   In Rose v Tunstall [2018] NSWCA 241 (Rose) at paras [15] and [33] – [34], the Court of Appeal made statements to a similar effect. See also Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668 per Davies J, and Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 per Griffiths AJ.

9. [24]

   The applicant made no submissions as to why leave should be granted and only made submissions going to the substance of the appeal. Mr King’s only contention on leave was that the order made by her Honour was final and not interlocutory. As I have said, in my opinion, her Honour’s decision in the Retrospectivity Application was interlocutory.

10. [25]

    In oral submissions, Mr King referred to an affidavit of Mr Gaynor in which he purported to detail the adverse effects that the litigation has had on his psychological health as well as the effects it has had on his family. The affidavit referred to by Mr King was in fact contained in the documentary material for the Costs Application. Mr King relied on the same affidavit to show evidence of the “utility” of allowing the appeal. I rejected it as irrelevant to the Retrospectivity Application.

11. [26]

    Other than that affidavit, no other evidence was adduced that went specifically to the application for leave. No court books were provided with respect to the Retrospectivity Application.

12. [27]

    Mr King relied on two authorities in oral argument, being the decision in BounceLED Pty Ltd v Clear Skies Corp Pty Ltd (in liq) [2023] NSWSC 121 (BounceLED) and Rose. BounceLED was an appeal from a decision of the Local Court concerning proceedings brought by a liquidator of an insolvent company. Mr King pointed to paras [32] – [36] as relevant to appeals from the Local Court. The crux of those passages is that the Supreme Court does not have the power to make a finding of primary fact under ss 39 or 40 of the LCA and a successful appeal must be remitted to the Local Court for further hearing. In Rose, leave to appeal was not granted because the legal costs incurred were disproportionate to the amount in dispute. Otherwise, it stands for the same proposition as BounceLED. Neither of these decisions assist the applicant with respect to leave.

13. [28]

    Mr King also relied on a statement by Gageler J in the transcript of the hearing in Burns v Corbett, which he submitted showed that the legislation was not retrospective. Leaving to one side the question of whether a statement of a High Court judge found in a transcript of a hearing is authoritative, this goes to the substance of the appeal rather than to an application for leave.

14. [29]

    Putting also to one side the applicant’s scant submissions, there is to my mind a far more important consideration which is dispositive of whether or not leave should be granted. The Retrospectivity Application was determined on 16 August 2021. Other than filing a Summons, the applicant took no further steps in pursuing the appeal. No explanation has been provided as to why the applicant failed to pursue the Summons when it might have been determinative of the complaints against him. The only evidence provided was the rejected affidavit. If leave were to be granted and the appeal successful, the result would be, as suggested by the authorities relied upon by the applicant, that the matter would be sent back to the Local Court for determination. The applicant would presumably succeed. That result would leave both parties in exactly the same position, but with each having to spend more time and money, and consuming valuable court time and resources. In all of the circumstances, I refuse leave to appeal.

The Costs Application

1. [30]

   Although the applicant won on the merits, her Honour made no order as to costs, relying on ss 34C(4)(e)(iv) and 60 of the NCAT Act. Those sections, when read together, relevantly provide that the Local Court may award costs but only in the circumstances that the Tribunal would have been permitted to award them if the proceedings were before the Tribunal, and the Tribunal may only award costs in relation to proceedings if it is satisfied that there are special circumstances warranting an award of costs.

2. [31]

   Mr Gaynor’s written submissions were contained in four paragraphs. He submitted that her Honour erred in failing to find special circumstances warranting an award of costs. The special circumstances relied on by the applicant were:-

3. [32]

   In oral submissions, Mr King reiterated the applicant’s arguments in the Local Court, i.e. that special circumstances existed first, due to proceedings being brought for an improper purpose, being collateral to Mr Burns upholding his rights; second, that the claims were misconceived and baseless; and third, that the respondent’s conduct in relation to the proceedings, most of which occurred outside court but was related to the proceedings, gave rise to special circumstances warranting an order for costs.

4. [33]

   Mr King submitted that her Honour erred in two ways. First, he submitted that her Honour applied the wrong test, by referring to “exceptional circumstances” rather than “special circumstances” as required by s 60(2) of the NCAT Act; and second, by forming a view that the evidence of improper purpose and misconduct by Mr Burns was irrelevant to the question of costs.

5. [34]

   Mr Burns provided written submissions and made brief oral submissions on the Costs Application. He submitted that Mr Gaynor’s costs were largely brought about by his own conduct. He also submitted that his own alleged behaviour was irrelevant to the findings of her Honour. Finally, he made general submissions as to the nature of the legislation and said that an individual ought not to be punished by having a costs order made against them for bringing a claim under anti-discrimination law.

6. [35]

   The applicant appropriately conceded that he required leave to appeal. I have outlined above the principles that govern a grant of leave to appeal. There must be sufficient doubt to warrant the reconsideration of the decision, or there must be an issue of principle, or a question of general public importance, or an injustice that is reasonably clear going beyond that which is merely arguable. Costs are, subject to the rules of court and other legislation, in the discretion of the court: s 98(1)(a) Civil Procedure Act 2005 (NSW). A person wishing to challenge a judicial costs discretion must show that the exercise of the discretion miscarried either because of some manifest error of principle or in the manner of its application to the material circumstances: Maiden v Maiden (1909) 7 CLR 727 at 742; [1909] HCA 16; Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 645.

7. [36]

   In arguing that her Honour applied the wrong test, Mr King accurately submitted that the correct test under s 60(2) of the NCAT Act is whether there are “special circumstances” warranting an award of costs.

8. [37]

   It is true that her Honour appeared, at times, to conflate the two tests. Mr King pointed to a section of the transcript of 4 November 2022 hearing where her Honour said:

9. [38]

   Towards the end of her Honour’s costs judgment, she stated the following:

10. [39]

    Mr King pointed to the first sentence as proof that her Honour applied the wrong test. However, when this paragraph is read in its entirety it is apparent that her Honour considered both exceptional and special circumstances separately and held that, on either test, a costs order was not justified. Indeed, at an earlier point in the costs judgment, her Honour specifically cited s 60(3) of the NCAT Act which included the correct “special circumstances” test. In any event, in my opinion her Honour did not make any error that would merit a grant of leave.

11. [40]

    Mr King’s second submission was that her Honour fell into error in failing to consider the extraneous material allegedly going to the respondent’s conduct as relevant to the issue of costs. It was submitted that Mr Burns lodged complaints in order to seek publicity and to obtain donations. Mr King took the court to a range of (inadmissible) material including newspaper articles, e-mails, web pages and other documents. There was also material referring to other complaints made by Mr Burns in unrelated proceedings. Most of the material was irrelevant to the appeal, but I allowed it to be tendered for the limited purpose of acknowledging that it was before her Honour. I observe that her Honour considered it to be entirely irrelevant.

12. [41]

    In my opinion, her Honour was in the best position to decide whether or not to exercise her discretion to make an order as to costs. By the time of the Costs Application, her Honour had been managing the litigation for several years. None of the material before her Honour established that Mr Burns had maintained the proceedings for a collateral or improper purpose, or that his complaints were baseless or misconceived. In my opinion, the applicant does not demonstrate any point of principle that would justify a grant of leave.

13. [42]

    I decline leave to appeal.

Orders

1. [43]

   I make the following orders:-

   1. (1)

      In proceedings 2021/261866 (the Retrospectivity Application):

   2. (2)

      In proceedings 2022/364275 (the Costs Application):-