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[2025] NSWCA 170
procedural. The notice of appeal filed on 13 June 2025 was dismissed as incompetent. The appellant was ordered to pay the costs of the fourth respondent: [44].
The Court dismissed Gaynor's appeal because he had not obtained leave and had not shown that the amount realistically at stake reached the $100,000 threshold for appealing as of right. The main claimed additional exposure was a payment to a charity if he failed to comply with other orders. The Court held that s 108(7) did not authorise such a payment: it concerned compensatory damages payable to the complainant, while Burns disavowed any payment to himself. The Attorney General succeeded and received a costs order. This is general legal information, not legal advice; Zoe can make mistakes, and a qualified Australian lawyer should check it before anyone acts on it, relies on it, or uses any draft.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,124 words · generated 06/10/2026
In Gaynor v Burns [2025] NSWCA 170, Free JA considered the Attorney General's motion to dismiss Bernard Gaynor's notice of appeal as incompetent. The central procedural question was whether Gaynor could appeal without leave under s 101(2)(r) of the (NSW), which he said applied because the matters at issue were worth at least $100,000. The Attorney General said leave was required. Gaynor had been put on notice of that objection, but had not filed a summons seeking leave: [1], [13]–[14].
6 cited instruments linked from this judgment.
The underlying dispute concerned a complaint by Garry Burns about a post Gaynor published on X. Burns alleged homosexual vilification contrary to s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW). The Anti-Discrimination Board accepted the complaint and referred it to NCAT: [5]. Because Burns lived in New South Wales and Gaynor in Queensland, the judgment explains that NCAT could not resolve this inter-State dispute, referring to the effect of Burns v Corbett. The relevant procedure allowed the Local Court to exercise the functions otherwise exercisable by NCAT in qualifying substituted proceedings: [6]–[7].
Burns's Local Court summons sought orders including publication of apologies, an injunction, development of a program or policy, and payment of “damages not exceeding $100,000” to a charity if Gaynor failed to comply with other orders: [8]. But Burns expressly stated that he was “not seeking damages (or entitled to damages)” for himself: [9].
Gaynor had sought judicial review of the Board's decisions. N Adams J dismissed that application. Gaynor then filed a notice of appeal, but no leave application: [13]. The Attorney General, who had been a defendant below and was the active contradictor there, moved to have the appeal dismissed: [4], [14].
The Court made two orders: the notice of appeal was dismissed as incompetent, and Gaynor was to pay the fourth respondent's costs: [44]. It did not decide the substantive merits of Gaynor's judicial review challenge.
The Court applied the approach in Gaynor v Attorney General of New South Wales [2020] NSWCA 48. A party claiming a right to appeal without leave bears the onus of showing that the statutory amount is met. The party must establish a realistic prospect that success on appeal would improve their financial position by the necessary amount. It is not enough to point to the formal relief sought; the Court must assess what is realistically in contest and the merit of the claimed relief: [20].
Gaynor relied on the potential cost of newspaper apologies and the charity payment. Evidence put the cost of one publication in each of the Sydney Morning Herald, The Australian and Daily Telegraph at $8,932.06 plus GST, or $9,825.27 including GST: [16]–[18]. The Court questioned several assumptions in Gaynor's calculation. The summons appeared to seek one apology in each newspaper on a weekday, not a series of publications across five consecutive weekdays: [24]. The Court also considered it more realistic to view the two statements of claim as giving rise to one set of remedial orders, rather than duplicated relief: [25]. It noted that if the second claim arose from a different complaint, the appeal would not directly determine its legal validity: [26].
The Court did not need to decide those disputed assumptions. It accepted them in Gaynor's favour for the purpose of the calculation. Even if he faced two sets of publications over five weekdays in all three newspapers, the total would be $98,252.66. He therefore still needed to establish a realistic risk of a further order exceeding $1,747.34: [27].
The proposed payment to a charity was decisive. The Court examined s 108 of the Anti-Discrimination Act, which provides for specified orders following a substantiated complaint. Section 108(7) allows an order that, if a respondent defaults on certain remedial orders, the respondent pay “the complainant” damages, capped at $100,000, “by way of compensation for failure to comply with the order”: [31]. Burns did not seek payment to himself, and expressly disavowed damages. A payment to a charity would not be an order to pay the complainant: [32]. It would also lack the compensatory character required by the subsection: [33].
The Court concluded that the charity payment could not realistically be ordered by the Local Court. Since the newspaper costs remained below $100,000, Gaynor had not demonstrated that the threshold was met: [34]–[35]. Leave was required, and without a leave application the appeal was incompetent.
On costs, the Court applied the prima facie position that costs follow the event. It rejected Gaynor's contention that the Attorney General should be treated like an intervener. The Attorney General was a party to the appeal, had been a defendant below and had performed the role of active contradictor: [37]–[40]. The Court also rejected the suggestion that Burns's participation created a duplicated costs burden: [41]. It ordered Gaynor to pay the fourth respondent's costs: [44].
The judgment states and applies existing principles rather than announcing a new general test. For the leave question, it adopts the approach expressed in Gaynor v Attorney General [2020] NSWCA 48 and refers to Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450. The relevant pre-existing approach is that the value of the matters “realistically in contest” must be assessed, rather than inferred from the face value or maximum amount of relief claimed: [20].
The judgment also refers to Nanschild v Pratt [2011] NSWCA 85 and, through it, to Ballas v Theophilos (No 1) (1957) 97 CLR 186. The passage cited from Ballas describes the guiding question as whether the judgment places the appellant in a position of prejudice at the jurisdictional limit when its consequences are pursued: [22]. Free JA records that Gaynor accepted the need to identify and quantify realistic financial consequences: [23].
For the statutory issue, the judgment applies the text of s 108(7) and the relevant provisions of the NCAT Act. The effect described is that a Local Court exercising NCAT's functions in substituted proceedings can exercise the relevant statutory powers, but those powers remain bounded by the terms of the enabling legislation: [31]. Section 108(7), as set out in the judgment, refers to damages payable to the complainant and compensation for failure to comply. The judgment holds that a payment to a charity falls outside that provision: [32]–[33].
The decision's practical contribution is therefore an application of the realistic-value test to a particular statutory remedy. It shows that a maximum amount appearing in a summons does not establish the jurisdictional threshold if the statutory power does not support that remedy. The judgment does not purport to alter the general costs principle it applies, which it describes as the prima facie position that costs follow the event: [37].
At [20], the Court says it must assess “the value of the matters that are realistically in contest in the appeal.” In plain English, the amount written into a claim is not automatically the amount legally or practically at stake. The Court looks at what the underlying court could realistically order and whether the appellant's success could realistically avoid that exposure.
At [24], the Court reads the summons as seeking publication in each newspaper on a weekday. It says it is difficult to see how that wording could realistically produce an order requiring publication on each of five consecutive weekdays. The point is about the relief actually claimed, not a broader interpretation an appellant might fear.
At [27], the Court assumes, for the sake of argument, that Gaynor's broader calculation of publication costs is correct. Even on that assumption, the costs reach only $98,252.66, so the charity-payment claim must supply the shortfall. This makes clear why the statutory scope of the proposed charity payment mattered to the appeal's competency.
At [29], the Court explains that a remedy “demonstrably lacking in merit” cannot create a realistic financial prejudice for the threshold calculation. Put simply, a party cannot establish the relevant value just by pointing to an order the court has no power to make.
At [32]–[33], the Court focuses on two elements of s 108(7): the money is payable to “the complainant”, and it is compensation for non-compliance. Burns sought payment to a charity, not to himself. The Court concluded that this was not the kind of order the subsection described.
At [39]–[40], the Court rejects treating the Attorney General as an intervener. The Attorney General was already a party, had been a defendant below, and had acted as the active contradictor. That context supported the ordinary costs order in favour of the successful respondent.
The judgment is relevant where a party files an appeal and claims that the monetary value of the dispute gives them a right to appeal without leave under s 101(2)(r) of the Supreme Court Act. The case indicates that the appellant must support the claimed value with evidence and show that the financial consequences are realistic, rather than speculative: [20], [23].
It is particularly relevant where the calculation depends on a remedy sought in the underlying proceedings. The court considering appeal competency may need to examine whether the court below could legally make that order, and whether the order is realistically available on the facts. A claimed maximum exposure will not necessarily count if the statutory provision does not authorise it: [28]–[34].
The decision may also be relevant where the underlying orders are non-monetary, such as publication of an apology, and the appellant seeks to convert them into a monetary figure. The judgment considered evidence of actual publication costs, but tested whether the number and frequency of publications relied upon were supported by the summons and a realistic reading of the relief: [16]–[18], [24]–[27].
Finally, it addresses costs arguments based on an analogy between a party and an intervener. The Court's analysis turned on the Attorney General's actual status and role in the proceedings, including being a defendant below and an active party on appeal: [39]–[41]. The decision does not establish a rule that every government respondent is necessarily entitled to costs; it explains why the particular intervener analogy failed in this case.
The judgment supplied here was decided on 30 July 2025 and does not contain any account of later judicial treatment of Gaynor v Burns. It is therefore not possible to identify, from this text, whether later courts have followed, distinguished, or otherwise considered this decision.
The authorities that Free JA discusses are authorities the judgment itself applies or refers to, not later treatment of this judgment. Gaynor v Attorney General is identified as stating the governing principles and is applied at [19]–[20]. Gillard is cited with approval for the realistic assessment of the value of claims: [20]. Nanschild and Ballas are referred to in discussing the guiding approach to financial prejudice: [22]. McGinn is cited for the procedural power to dismiss an incompetent appeal: [2]. Burns v Corbett is discussed as background to NCAT's jurisdiction and the substituted-proceedings procedure: [6]–[7].
Those references explain the sources used by Free JA. They do not provide evidence of how courts subsequently treated the 2025 decision.
The Court expressly left several matters undecided because they were unnecessary to resolve the motion. It did not decide whether the second statement of claim could realistically expose Gaynor to duplicated remedies. It considered one set of remedial orders the more realistic view, but did not reach a concluded decision: [25], [27].
It also did not decide the precise effect of the second statement of claim if it arose from a separate complaint. The judgment notes that success in the appeal would not directly challenge the validity of the steps associated with that separate complaint, although arguments about the territorial operation of the Act might affect the claim substantively: [26]. The Court left that issue open.
The judgment does not determine whether any apology, injunction, or program order would ultimately be made in the Local Court. Its task was to assess the value of the matters realistically in contest for the appeal-leave threshold, not to decide the underlying discrimination complaint or the merits of the judicial review challenge: [13], [27]–[35].
Nor does the decision determine the criticisms about the timing of Burns's affidavit and submissions, or whether such conduct could ever justify an indemnity costs order in a different case. The Court found those matters unnecessary to decide because the decisive point had been raised by the Attorney General and did not depend on Burns's submissions: [42]–[43].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gaynor v Burns [2025] NSWCA 170
Hearing dates: 28 July 2025
Date of orders: 30 July 2025
Decision date: 30 July 2025
Before: Free JA
Decision: (1) The notice of appeal filed 13 June 2025 is dismissed as incompetent.
(2) The appellant is to pay the costs of the fourth respondent.
Catchwords: CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal required — Supreme Court Act 1970 (NSW), s 101(2)(r) — whether $100,000 jurisdictional limit satisfied — assessment of the value of the matters realistically in contest in the appeal — realistic assessment of the merit of relief claimed
HUMAN RIGHTS — discrimination — grounds — sexual-orientation discrimination — homosexual vilification — whether damages in default of compliance with an order pursuant to Anti-Discrimination Act 1977 (NSW), s 108(7) payable to third party
COSTS — whether costs should follow the event where purported intervener successful on motion
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 49ZT, 89B, 93C, 108
Civil and Administrative Tribunal Act 2013 (NSW), ss 34B, 34C
Commonwealth Constitution, s 75
Supreme Court Act 1970 (NSW), ss 46, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1)
Cases Cited: Ballas v Theophilos (No 1) (1957) 97 CLR 186; [1957] HCA 49
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450
McGinn v Cranbrook School [2015] NSWCA 378
Nanschild v Pratt [2011] NSWCA 85
Category: Procedural rulings
Parties: Bernard Gaynor (Appellant)
Garry Burns (First respondent)
The Delegate of the President of the Anti-Discrimination Board (Second Respondent)
Civil and Administrative Tribunal of New South Wales (Third respondent)
Attorney-General for New South Wales (Fourth respondent)
Representation: Counsel:
R Rasmussen (Appellant)
D Birch (Fourth respondent)
G Burns (First respondent) (self-represented)
Solicitors:
Robert Balzola Lawyers (Appellant)
Crown Solicitor’s Office (NSW) (Fourth respondent)
File Number(s): 2025/114717
Publication restriction: Nil
FREE JA: By notice of motion filed on 8 July 2025 the Attorney General seeks an order dismissing as incompetent the notice of appeal filed on 13 June 2025 by Bernard Gaynor. The Attorney General contends that, pursuant to s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), leave is required. The appellant, despite having been on notice of the objection to competency for several weeks, has declined to file a summons seeking leave to appeal. The appellant maintains that he has a right to appeal, and no leave is required, on the basis that his appeal is one that falls within s 101(2)(r). This is because, the appellant contends, the appeal involves a matter at issue amounting to, or of the value of, $100,000 or more or, in the alternative, it is an appeal that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
The parties proceeded on the basis that the Attorney General’s motion is one apt to be determined by a single Judge of Appeal. They were correct to do so. Pursuant to s 46(1)(b) of the Supreme Court Act, a single Judge of Appeal may exercise the powers of the Court of Appeal to dismiss an appeal “for want of prosecution or for other cause specified in the rules”. An appeal may be dismissed as incompetent upon the objection of a respondent under r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW). The rules thus specify the present circumstances as providing cause for an appeal to be dismissed: McGinn v Cranbrook School [2015] NSWCA 378 at [5].
For the reasons which follow, the appellant’s contention that the $100,000 jurisdictional limit is satisfied is unsound. The appeal is incompetent and must be dismissed. The Attorney General, who was a respondent to the appeal and who was entirely successful on his application, is entitled to an order that the appellant pay his costs.
The appeal is brought from the judgment of N Adams J in Gaynor v Burns [2025] NSWSC 185. The Attorney General was joined as a defendant to the proceedings below and was the sole active contradictor before her Honour. The Attorney General is the fourth respondent in the appeal. The first respondent, Mr Burns, filed a submitting appearance at first instance. Mr Burns appeared, on his own behalf, on the hearing of the Attorney General’s motion to dismiss the appeal. Mr Burns made brief submissions and filed an affidavit which gave some further explanation of the underlying dispute and of his proceedings in the Local Court. The role of Mr Burns in the hearing of the Attorney General’s motion was a matter of some controversy in the context of costs, as addressed further below.
The underlying dispute concerns a complaint that was made on 29 December 2023 by Mr Burns to the Anti-Discrimination Board (ADB) under the Anti-Discrimination Act 1977 (NSW) (Anti-Discrimination Act). Mr Burns complained about a “tweet” that was published by Mr Gaynor on the social media platform now known as X. His complaint was that the tweet in question constituted homosexual vilification contrary to s 49ZT(1) of the Act. On 15 January 2024 the ADB accepted the complaint, pursuant to s 89B of the Act. On 15 April 2024 the ADB referred the complaint to the NSW Civil and Administrative Tribunal (NCAT), pursuant to s 93C of the Anti-Discrimination Act.
A relevant factual feature of the dispute is that Mr Burns resides in New South Wales, whereas Mr Gaynor resides in Queensland. The dispute regarding the alleged contravention of the Anti-Discrimination Act is therefore one between residents of different States. This assumes significance where the exercise of judicial power is concerned because of the special treatment of diversity jurisdiction under s 75 of the Constitution, as considered in Burns v Corbett (2017) 265 CLR 304; [2018] HCA 15 (Burns v Corbett). The material point for present purposes is that NCAT lacks jurisdiction to resolve a dispute of the kind referred to it by the ADB where the dispute is between residents of different States. It is instead necessary to invoke the jurisdiction of the Local Court or the District Court.
In response to the High Court’s decision in Burns v Corbett, Part 3A was introduced into the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Relevantly for present purposes, where the procedure in ss 34B and 34C of the NCAT Act is followed, the Local Court has jurisdiction to deal with matters of this kind, and may exercise all the powers that would otherwise be exercisable by NCAT, provided that certain conditions are satisfied. Those conditions have the practical effect that a party in the position of Mr Burns must first make an application to NCAT before instituting proceedings in the Local Court.
The Court had the benefit of written and oral submissions by counsel representing Mr Gaynor and the Attorney General respectively, and from Mr Burns. There is no dispute in those submissions about the principles governing an application of the present kind. As it happens, those principles were stated by the Court of Appeal in another putative appeal involving the same parties: Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing) (Gaynor v Attorney General).
It is sufficient to draw attention to the following key points emerging from Gaynor v Attorney General and the authorities considered therein:
the onus lies on Mr Gaynor, as the party asserting that he may bring his appeal as of right, to demonstrate that the amount in issue meets the $100,000 threshold;
in order to do so, Mr Gaynor must show that a successful appeal would improve his financial position by at least that amount;
it is necessary for a party in Mr Gaynor’s position to demonstrate a realistic prospect on appeal of lessening the prejudice that he would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard; and
in assessing what is truly “at issue” on appeal, the Court must assess the value of the matters that are realistically in contest in the appeal. For example, it is not sufficient to point to the substantive relief formally claimed without a realistic assessment of the merit of such claims: Gaynor v Attorney General at [17], citing with approval Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [11].
Both parties proceeded on the basis that in applying s 101(2)(r) it is legitimate for Mr Gaynor to point to the potential financial consequences for him of the Local Court making orders of the kind sought by Mr Burns, in circumstances where the direct or indirect effect of success on the appeal would be that the Local Court proceedings would be resolved in favour of Mr Gaynor and Mr Gaynor would no longer face the prospect of being subject to such orders.
Mr Gaynor also drew attention to Nanschild v Pratt [2011] NSWCA 85 at [30], where McColl JA (with whom Campbell JA agreed) referred to the “guiding principle” as articulated in Ballas v Theophilos (No 1) [1957] HCA 49; (1957) 97 CLR 186 at 193 as being whether the judgment from which the appeal was sought placed the appellant “in a position of prejudice [in the amount of the jurisdictional limit] when all the consequences of the judgment are pursued”.
Mr Gaynor accepts that he bears the onus of identifying and quantifying the realistic financial consequences of the judgment revealed by such a pursuit. He argued that success on the appeal would relieve him of the risk of being ordered by the Local Court to procure published apologies of the specified size on five consecutive weekdays in each of the and newspapers, as well as an order to pay to a charity “damages” of up to $100,000. Mr Gaynor further argued that because Mr Burns has filed two statements of claim Mr Gaynor is at risk of being subject in the Local Court to two sets of relief, effectively duplicating those various burdens. In each case Mr Gaynor contends that success on the appeal would avoid the financial consequences he is otherwise facing.
108 Order or other decision of Tribunal
…
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following—
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
…
(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.
(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
…
(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.
Section 108(7) does not provide a basis for the Local Court to make an order of the kind sought in par 7 of the summons. Section 108(7) is concerned in terms with an order that the respondent is to pay “the complainant” damages. Mr Burns does not seek an order that any amount of money be paid to him, whether by way of damages or otherwise. He disavows any such relief. An order that the respondent, Mr Gaynor, pay a third party charity an amount of money would not be an order of the kind contemplated by s 108(7).
Moreover, an order for the payment of damages to the complainant under s 108(7) must have the character of being an order to pay such damages “by way of compensation” for the respondent’s failure to comply with the relevant order made under subsection 2(b), (c), (d) or (e). An order to pay damages to a complainant by way of compensation is necessarily concerned with remedying loss or damage suffered, in that scenario, by the complainant. An order that an amount of money be paid to a charity lacks that compensatory character.
For these reasons, despite par 7 of the summons seeking remedies, there is no realistic prospect of an order being made by the Local Court that Mr Gaynor pay an amount of money to a charity. Even adopting for the sake of illustration all the other assumptions made by Mr Gaynor to advance his claims as to the financial exposure he faces in the Local Court, the most that could be said is that if the Local Court proceedings continue and are determined adversely to Mr Gaynor he may be ordered to spend approximately $98,000 to procure the necessary publication of apologies.
In the circumstances, leave is required to appeal under s 101 of the Supreme Court Act. Mr Gaynor does not seek leave. His appeal is incompetent and must be dismissed.
At the conclusion of the hearing of the Attorney General’s motion, counsel for Mr Gaynor indicated that there were a number of submissions that Mr Gaynor wished to make on the question of costs. He sought leave to file further written submissions to address those matters. In accordance with the leave granted by the Court, both Mr Gaynor and the Attorney General filed supplementary submissions on costs.
The prima facie position is that the Attorney General, having succeeded in his motion, should have an order for costs in his favour in respect of the costs of the motion on the basis that costs should follow the event. Prima facie, it is also appropriate that such a costs order should extend to the costs of the appeal on the basis that the Attorney General, as the fourth respondent, has been put to the cost of responding to an incompetently instituted appeal.
Mr Gaynor submits that despite these matters he ought not be required to pay the costs of the Attorney General. His submissions in this regard depend primarily upon the proposition that the Attorney General is in substance an intervener, and (Mr Gaynor contends) the authorities relating to the payment of costs incurred by an intervener generally favour the conclusion that an unsuccessful party should not have to pay the costs of an intervener.
Those arguments are rejected. The Attorney General is not an intervener in the appeal. The Attorney General is a party to the appeal, and appropriately so where the Attorney General was a defendant (not an intervener) in the proceedings at first instance. There is no meaningful analogy with the position of an intervener.
In any case, as the Attorney General correctly submits, the authorities which Mr Gaynor seeks to call in aid are generally concerned with the costs of an intervener in circumstances where it is considered unreasonable that an unsuccessful litigant should have to bear the costs of an intervention in addition to the costs of a successful party. There is no meaningful analogy with the present case. The Attorney General was a party to the proceedings at first instance and is a party to the appeal. He was the only active contradictor below and in substance it has continued to perform that role on appeal. Mr Gaynor makes no complaint, and has no basis to complain, about the Attorney General’s approach.
To the extent that Mr Gaynor argues that Mr Burns could and should have brought the objection as to competency, that is not a realistic assessment of the situation given the involvement of the Attorney General as a respondent and the role hitherto adopted by the Attorney General of acting as contradictor to the claims advanced by Mr Gaynor. Nor is there any risk of duplication of the costs burden imposed on Mr Gaynor. Although Mr Burns took an active role in respect of the Attorney General’s motion, that did not involve Mr Burns incurring any legal costs or subjecting Mr Gaynor to any further costs orders.
The orders of the Court are:
The notice of appeal filed 13 June 2025 is dismissed as incompetent.
The appellant is to pay the costs of the fourth respondent.
**********
Gaynor
Burns [2025] NSWCA 170
(1957) 97 CLR 186
(2018) 265 CLR 304
(2017) 265 CLR 304
The notice of appeal filed on 13 June 2025 was dismissed as incompetent. The appellant was ordered to pay the costs of the fourth respondent: [44].
Mr Burns acted in accordance with that procedure. After the referral of his complaint to NCAT, Mr Burns commenced proceedings in the Local Court. Mr Burns filed a summons in the Local Court on 1 April 2025, and a statement of claim in respect of that summons. There is some lack of clarity in the relief sought in the summons, but in substance the summons seeks the following relief:
that Mr Gaynor cause an apology to be published on his Twitter/X account;
that an apology pursuant to the Anti-Discrimination Act, not less than 70mm v 100mm in size, be published in the Sydney Morning Herald, The Australian and Daily Telegraph newspapers, in an edition published on a Monday, Tuesday, Wednesday, Thursday or Friday (other than a public holiday);
that there be an order enjoining Mr Gaynor from continuing or repeating any conduct that is unlawful pursuant to the Anti-Discrimination Act or its regulations;
that there be an order that, in default of compliance with the other remedial orders imposed by the Court within the time specified by the Court, Mr Gaynor is to “pay a charity damages not exceeding $100,000”; and
that Mr Gaynor develop and implement a program or policy aimed at eliminating unlawful homosexual discrimination.
Mr Burns does not seek an order for payment of damages to him. Indeed, in his statement of claim Mr Burns specifically states that he is “not seeking damages (or entitled to damages)”.
A procedural quirk is that Mr Burns has filed a second statement of claim in the Local Court. The second statement of claim apparently relates to the same publication by Mr Gaynor on X. The second statement of claim also indicates on its face that it is filed in support of the same claim for relief in the summons filed on 1 April 2024 (albeit mistakenly identified as having been filed on 1 June 2024). No additional or amended summons has been filed. Certain references in the second statement of claim indicate that there has been a separate complaint to the Anti-Discrimination Board, and a separate proceeding in NCAT arising from that complaint. The second statement of claim, like the first, records that Mr Burns is “not seeking damages (or entitled to damages)”.
The Attorney General pointed out in submissions that the second statement of claim has been given the same proceeding number in the Local Court, which would be consistent with it being treated as part of the original proceeding commenced on 1 April 2024. The Attorney General further argues that this is consistent with a conclusion that in the Local Court, notwithstanding that two statements of claim have been filed, Mr Gaynor is in substance facing only a single claim for relief as set out in the filed summons. Mr Gaynor, in seeking to quantify his total potential financial exposure in the Local Court if he does not succeed in the appeal, contends that he is at jeopardy of being subject to relief under each of the two statements of claim, notwithstanding that there is only one summons.
Mr Gaynor sought judicial review of the two decisions of the ADB, being the decision to accept the first complaint of Mr Burns and the decision to refer that complaint to NCAT. Mr Gaynor contends that if those steps were not lawfully carried out by the authorised officers of the ADB, the Local Court proceedings cannot be maintained by Mr Burns. At the hearing of the Attorney General’s motion, counsel for Mr Gaynor accepted that Mr Gaynor’s judicial review challenge and the current appeal do not involve a formal attack on the validity of the equivalent anterior steps referred to in the second statement of claim. He nevertheless submitted that a favourable outcome of the appeal would have the practical effect of also delivering Mr Gaynor success in his defence of the second statement of claim. For the reasons developed below, this is one of several debates that do not need to be resolved in order to determine the Attorney General’s motion.
Mr Gaynor’s application for judicial review was dismissed by N Adams J. It is unnecessary for present purposes to rehearse the grounds of review or her Honour’s reasons, which were published on 12 March 2025. Mr Gaynor filed a notice of appeal on 13 June 2025 (having earlier served a notice of intention to appeal). No summons seeking leave to appeal was filed.
By letter to Mr Gaynor’s solicitor dated 27 June 2025, the Crown Solicitor’s Office on behalf of the Attorney General raised an objection to the competency of the appeal. Having set out reasons why, in the opinion of the Attorney General, leave to appeal was required, the letter invited Mr Gaynor to regularise the proceedings by filing and serving a summons seeking leave to appeal. The letter foreshadowed that in the absence of such a summons being filed (or a satisfactory explanation as to why leave is not required), the Attorney General would file a notice of motion objecting to the competency of the appeal. Mr Gaynor, who has apparently been legally represented throughout, declined to file a summons seeking leave to appeal.
On 7 July 2025 the affidavit of Robert Balzola, Mr Gaynor’s solicitor, was filed. It purports to justify Mr Gaynor’s position on the question of leave by setting out evidence as to the financial burdens that would be imposed on Mr Gaynor if he became subject to relief of the kind sought by Mr Burns in the Local Court. The only matters addressed were the cost of publishing apologies in the Sydney Morning Herald, The Australian and Daily Telegraph, of the kind described in the Local Court summons, and the prospect of having to “pay a charity damages not exceeding $100,000”. At the hearing of the Attorney General’s motion counsel for Mr Gaynor confirmed that these were the only aspects of the relief sought that were relied upon as having the potential to impose relevant financial burdens on Mr Gaynor.
The affidavit of 7 July 2025 described steps that had been taken to quantify the cost of publishing apologies of the requisite dimensions in weekday editions of the Sydney Morning Herald*, The Australian* and Daily Telegraph. As at the time of the affidavit, the following costs had been ascertained:
in the Sydney Morning Herald, $2,300 (plus GST) per day; and
in the Daily Telegraph, $3,626.78 (plus GST) per day.
Mr Balzola had not at that time received a response to the enquiries he had made of The Australian. The gap was filled by a further affidavit of Mr Balzola of 16 July 2025, in which Mr Balzola deposed that The Australian had advised that the cost of publishing an apology in the relevant format in a weekday edition of that publication would be $3,005.28 (plus GST).
The evidence thus disclosed that it would cost Mr Gaynor $8,932.06 (plus GST) in total to publish an apology of the kind contemplated in the Local Court summons in each of the relevant newspapers on a weekday. The GST inclusive amount would be $9,825.27.
This approach involves some questionable steps. The first concerns the number of published apologies that would need to be procured by Mr Gaynor if Mr Burns succeeded in persuading the Local Court to grant the relief that he seeks. In his summons, Mr Burns seeks an order that Mr Gaynor cause an apology to be published in each of the Sydney Morning Herald, The Australian and Daily Telegraph newspapers “on a Monday, Tuesday, Wednesday, Thursday or Friday other than a public holiday”. In plain terms, the prayer for relief seeks an order for publication in each of the specified newspapers of a single apology on a weekday (other than a public holiday). It is difficult to see how a claim for such relief could, as a realistic prospect, result in an order that such an apology be published on a Monday, Tuesday, Wednesday, Thursday and Friday. Mr Gaynor drew attention to the fact that Mr Burns had not disavowed any intention to seek repeated published apologies of this kind, in circumstances where Mr Gaynor was interpreting the summons as having that possible effect. While that is an accurate observation, it cannot change the terms of the relief Mr Burns in fact seeks in the Local Court.
The second questionable step is that it appears unrealistic to treat the second statement of claim filed by Mr Burns in the Local Court as giving rise to a risk that Mr Gaynor will be subject to the same relief twice in respect of the same substantive complaint. While the approach adopted by Mr Burns of filing two statements of claim in respect of the same summons is undoubtedly curious, the more realistic assessment would seem to be that Mr Gaynor is at risk of facing one set of remedial orders for the conduct complained of, the upper limits of which are effectively set by the summons.
The third questionable step is linked to the second. If it is the case that the second statement of claim creates the prospect of separate relief arising from a separate complaint to the ADB, then it would also follow that success on the appeal would not have a direct impact on the legal validity of that claim as brought by Mr Burns in the Local Court. The first statement of claim arises from the ADB’s acceptance and referral of a complaint, and the validity of those steps is the subject of direct challenge in the appeal. The second statement of claim arises from a different complaint, and there is not the same formal connection between the judicial review proceedings, the outcome of the appeal and the status of the Local Court proceeding. The most that could be said on this topic by Mr Gaynor is that if certain of his arguments on appeal were to succeed (going to alleged territorial limitations in the operation of the Anti-Discrimination Act) that would mean that the second statement of claim brought by Mr Burns would be bound to fail as a matter of substance.
In any event, it is unnecessary to reach a concluded view on any of the three points. As Mr Gaynor accepted, even assuming in his favour that he is correct in his approach on each point, he can only satisfy the jurisdictional requirement in s 101(2)(r) of the Supreme Court Act if he can demonstrate that there is a realistic prospect of being subjected to both the costs of publishing apologies in the newspapers and an order to pay a charity some amount of “damages” in the event of default of compliance with the Local Court’s other remedial orders. That follows from the evidence about the cost of publishing apologies. Even if Mr Gaynor is correct in submitting that he may be ordered to pay for two sets of publications for five consecutive days in each of the three newspapers, the total cost would be only $98,252.66. Mr Gaynor can therefore only demonstrate satisfaction of the jurisdictional limit if he can also point to a realistic prospect of being subject to an order by the Local Court to pay “damages” to a charity, in some amount in excess of $1,747.34.
The decisive flaw in Mr Gaynor’s approach is that there is no realistic prospect of him being ordered in the Local Court to pay damages to a charity of up to $100,000. As the Attorney General correctly submitted, the Local Court has no power to make such an order. In the circumstances, it is unnecessary to go further in testing the correctness of Mr Gaynor’s approach to the three issues identified above.
It may be accepted that Mr Burns in his summons in the Local Court seeks, by paragraph 7 of what he calls his “public interest remedies”, an order that in default of compliance with the other orders made by the Local Court Mr Gaynor pay “damages not exceeding $100,000” to “a charity”. However, in light of the authorities referred to above, it is not sufficient for Mr Gaynor to point to the fact that Mr Burns seeks a remedy of this kind in the Local Court. If such a claim for relief is demonstrably lacking in merit, there can be no realistic prospect of Mr Gaynor suffering a commensurate financial prejudice, apt to be avoided by success on appeal. Most clearly, if the Local Court lacks the power to make such an order, then there cannot be said to be a realistic prospect of such an order being made.
Mr Gaynor in his submissions appeared to accept that in circumstances where he relies on this as part of his calculations to get past the $100,000 threshold it was at least incumbent upon him to demonstrate that the Local Court would have the power to make an order of this kind. When pressed to identify the source of power, Mr Gaynor floated a number of possibilities, but ultimately submitted that an order could be made pursuant to s 108(7) of the Anti-Discrimination Act. That submission cannot be accepted.
Section 108 in terms deals with the power of NCAT, rather than a court, to make orders if it finds a complaint substantiated in whole or in part. Where Part 3A of the NCAT Act is engaged because the proceedings in question are “substituted proceedings” (within the meaning of s 34C), the powers in question are instead exercisable by the District Court or the Local Court, as the case may be. Each of those courts, as an authorised court in respect of such proceedings, has and may exercise all of the jurisdiction and functions that NCAT would have had if it could exercise federal jurisdiction, including jurisdiction or functions conferred or imposed on NCAT under the enabling legislation: s 34C(3) of the NCAT Act. The Local Court would thus be empowered in the proceedings brought by Mr Burns to exercise the powers available under s 108 of the Anti-Discrimination Act, which relevantly provides:
Mr Gaynor also submitted that special costs consequences for Mr Burns should arise if it transpires that the Court is minded to grant the orders sought by the Attorney General because of matters arising from the affidavit and submissions filed by Mr Burns. That is in circumstances where, according to Mr Gaynor, Mr Burns was unreasonably tardy in filing and serving both his affidavit and his submissions. Mr Gaynor submits that if any matter put to the Court by Mr Burns is determinative of the disposition of the Attorney General’s motion, Mr Burns ought be required to indemnify Mr Gaynor in respect of his liability to pay the costs of the Attorney General.
It is unnecessary to express any view about whether there is substance to Mr Gaynor’s criticisms in this regard, beyond noting that it is difficult to infer from the information available to the Court that Mr Burns was tardy in a way, let alone in a way that had a material impact on Mr Gaynor in dealing with the Attorney General’s motion. It is also unnecessary to express any view about whether an order of the kind sought by Mr Gaynor would have been justified, even if the criticisms of the timing of the contribution by Mr Burns were well founded. The Court’s conclusion that the appeal should be dismissed does not hinge on anything arising from the submissions of Mr Burns. The decisive point, namely the lack of power to make an order that Mr Gaynor pay “damages” to a charity, was raised squarely in the submissions of the Attorney General and Mr Gaynor was fairly on notice of the need to address that issue. No submission to the contrary was put.