Gaynor v Burns

Legislation

1. The Local Court Act 2007 (NSW) (the LCA) relevantly provides:- 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court - (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs.
2. Part 3A of the NCAT Act relevantly provides:- Part 3A Federal proceedings 34A Definitions In this Part - authorised court means any of the following - (a) the District Court, (b) the Local Court. federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution. jurisdictional limit, in relation to an authorised court, means the jurisdictional limit of the court within the meaning of the Civil Procedure Act 2005. substituted proceedings - see section 34C. 34B Applications or appeals involving federal jurisdiction may be made to authorised court (1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal. (2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that - (a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and (c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and (d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court. (3) An application for leave must be - (a) filed with the authorised court along with - (i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and (ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37 - a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal. (4) If an appeal is made under this Act in relation to any matter in issue in the application or appeal - (a) for an appeal lodged before the application for leave is made to an authorised court - the court cannot grant leave unless and until the appeal is determined, or (b) for an appeal lodged on or after leave is granted by an authorised court - proceedings in the court concerning the application or appeal are stayed until the appeal made under this Act is determined. (5) An authorised court may remit an application or appeal to the Tribunal to determine the application or appeal if the court is satisfied that the Tribunal has jurisdiction to determine it. The court may do so instead of granting leave or after granting leave. (6) An authorised court that remits an application or appeal to the Tribunal may make such orders that it considers appropriate to facilitate the determination of the application or appeal by the Tribunal. (7) The Tribunal is to determine any application or appeal that is remitted to it in accordance with any orders made by the authorised court. (8) The following provisions apply if the authorised court is the District Court - (a) the District Court may grant leave and then transfer the proceedings on the application or appeal to the Local Court in accordance with the provisions of Division 2 (Transfer of proceedings from higher to lower court) of Part 9 of the Civil Procedure Act 2005, (b) if a transfer order is made under that Division, this Part applies to the proceedings as if the Local Court had granted leave for the application or appeal to be made to it instead of the Tribunal. 34C Proceedings after leave granted (1) Proceedings taken to be commenced if leave granted If an authorised court grants leave for an original application or external appeal to be made to it instead of the Tribunal - (a) proceedings for the determination of the application or appeal (substituted proceedings) are taken to have been commenced in the authorised court on the day on which the application or appeal was first made to the Tribunal, and (b) the court may make such orders (including in relation to the Tribunal) as it considers appropriate to facilitate its determination of the application or appeal. (2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or any enabling legislation that applies to the application or appeal concerned provided it was first lodged with the Tribunal before the expiry of the period. (3) Jurisdiction and functions of authorised court The authorised court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the Tribunal would have had if it could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed on the Tribunal by or under this Act or enabling legislation. (4) Modifications to certain functions Despite subsections (1)-(3), the following provisions apply in relation to substituted proceedings - (a) the authorised court is to be constituted as provided by its relevant courts legislation instead of as provided by this Act or enabling legislation, (b) a party to the substituted proceedings is not required to pay any fees in relation to the commencement of the proceedings in the authorised court other than the fees referred to in section 34B(3)(b) unless the authorised court determines that additional fees are payable under its relevant courts legislation because of a substantial alteration in the nature of the claims in the proceedings, (c) the legislation applicable to appeals against decisions of the authorised court apply to decisions of the court in the substituted proceedings instead of Divisions 2 and 3 of Part 6, (d) if the authorised court is the District Court - the practice and procedure applicable in the District Court under its relevant courts legislation (and any laws applicable in relation to contempt of court) apply to the substituted proceedings instead of Parts 4 and 5, any enabling legislation, the procedural rules and practice directions, (e) if the authorised court is the Local Court - the practice and procedure applicable in the Local Court under its relevant courts legislation applies to the substituted proceedings instead of Part 4, any enabling legislation, the procedural rules and practice directions, except that - (i) the rules of evidence are to be applied to the proceedings if they would have been required to be applied if the proceedings were before the Tribunal, but the Local Court may, if it decides that it is appropriate to do so in the circumstances, not apply the rules of evidence if they were not required to be applied by the Tribunal, and (ii) a person who is not an Australian legal practitioner can, with the leave of the Local Court, represent a party to the proceedings, but only in the circumstances that the Tribunal would have been permitted to allow it if the proceedings were before the Tribunal, and (iii) a person who could have been made a party to, or intervened in, the proceedings if the proceedings were before the Tribunal can, with the leave of the Local Court, also be made a party or intervene, and (iv) the Local Court may award costs in the proceedings only in the circumstances that the Tribunal would have been permitted to award them (and the costs are to be assessed in the same way as they would have been) if the proceedings were before the Tribunal, (f) the authorised court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the substituted proceedings commenced, (g) the power of the authorised court to make orders as to costs in relation to the substituted proceedings includes a power to make orders with respect to - (i) the application for, and the granting of, leave for the application or appeal to which the substituted proceedings relate to be made to the court, and (ii) any step taken in the Tribunal before leave was granted, (h) any other modifications (including to the provisions of this Act or other legislation) as may be prescribed by the regulations for substituted proceedings of the kind concerned. (5) The Minister is not to recommend the making of a regulation for the purposes of subsection (4)(h) unless the Minister certifies that - (a) if the proposed amendments affect the exercise of jurisdiction or functions by the Tribunal - the President has agreed to the amendments, and (b) if the proposed amendments affect the exercise of jurisdiction or functions by the District Court - the Chief Judge of the District Court has agreed to the amendments, and (c) if the proposed amendments affect the exercise of jurisdiction or functions by the Local Court - the Chief Magistrate of the Local Court has agreed to the amendments. (6) References to Tribunal in legislation To avoid doubt (but subject to the regulations) - (a) any reference to the Tribunal in a provision of legislation that confers or imposes a function on the Tribunal is to be read as including a reference to an authorised court if the function is conferred or imposed on the court because of the operation of this section, and (b) any reference to proceedings in the Tribunal in a provision of the kind referred to in paragraph (a) is to be read as including a reference to proceedings in the authorised court. (7) Definitions In this section - modification includes addition, exception, omission or substitution. relevant courts legislation means - (a) for the District Court - the District Court Act 1973 and the rules of court under that Act, and (b) for the Local Court - the Local Court Act 2007 and the rules of court under that Act, and includes the Civil Procedure Act 2005 and the regulations and uniform rules under that Act in their application to the Court concerned. 34D Relationship of Part to this Act and other laws (1) The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or other legislation. (2) To avoid doubt, subsection (1) applies despite anything in a Division Schedule for a Division of the Tribunal.
3. Section 60 of the NCAT Act relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

The Retrospectivity Application

1. 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. 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.

Whether her Honour's decision was interlocutory or final

1. 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: "So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, though it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only."
2. 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.
3. 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.
4. 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.

Whether or not leave should be granted

1. 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]: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]."
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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. 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. 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:- a. Considerations of collateral or improper purpose in relation to the matters brought against the Plaintiff by the Defendant as set out in the Material Filed before the Court; b. Considerations of conduct of the Defendant in relation to the matters brought against the Plaintiff by the Defendant as set out in the Material Filed before the Court; c. Consideration so confused baseless misconceived and false materials and information in relation to the matters brought against the Plaintiff by the Defendant as set out in the Material Filed before the Court; d. The dismissal of the Defendant's proceedings; e. All the circumstances of the case. [sic]
3. 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. 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. 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. 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. 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. 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: "This is a costs application for you to prove to me, apparently, that there is some kind of exceptional circumstance."
9. Towards the end of her Honour's costs judgment, she stated the following: "I am not of the view that these matters found an exceptional circumstance for the purposes of a costs application being granted to Mr Gaynor. I have addressed the legislation and I have addressed what I needed to look at as the trier of fact and law in relation to whether it was appropriate to find that there were special or exceptional circumstances. I am certainly not of the view that outside of the extraneous material, that there has been special or exceptional circumstances proven on the balance."
10. 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. 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. 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. I decline leave to appeal.

Orders

1. I make the following orders:- 1. 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. 1. 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.

Amendments 20 July 2023 - typographical error in [8]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2023