Gaynor v Burns (No 2)

Category: Costs

Parties: Bernard Gaynor (Plaintiff)
Garry Burns (First Defendant) (submitting appearance)
The Delegate of the President of the Anti-Discrimination Board (NSW) (Second Defendant) (submitting appearance)
NSW Civil and Administrative Tribunal (Third Defendant) (submitting appearance)
Attorney General of New South Wales (intervening) (Fourth Defendant)

Representation: Counsel:
Mr R Rasmussen (Plaintiff)
Mr D Birch (Fourth Defendant)
Solicitors:
Robert Balzola and Associates (Plaintiff)
Crown Solicitor’s Office (Fourth Defendant)

File Number(s): 2024/00200704

Publication restriction: Nil.

JUDGMENT

1. On 12 March 2025, I delivered my judgment in this matter: Gaynor v Burns [2025] NSWSC 185. The plaintiff was unsuccessful. I ordered that he pay the costs of the fourth defendant, who was the only active contradictor. On 21 March 2025, I went on extended leave.

2. On 25 March 2025, the plaintiff filed a notice of motion seeking to set aside the costs order I made on 12 March 2025 pursuant to r 36.16(1) and (3A) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). That motion was filed in the Registry. It was subsequently forwarded to my associate. There had been no direct approach made to my chambers from 12 March 2025 until 21 March 2025 foreshadowing this application. My associate contacted me about this matter while I was on leave, and I agreed that I would deal with it after my return from leave on 23 June 2025.

3. On 28 April and 28 May 2025, the Registrar made orders for the filing of evidence and submissions. On 10 June 2025, the fourth defendant approached my chambers seeking that the motion be determined on the papers by consent of the parties. That approach was confirmed on 16 June and on 17 June 2025 a court book was delivered to my chambers.

4. On 15 July 2025, my chambers were notified that the plaintiff had appealed to the Court of Appeal against, inter alia, my costs order of 12 March 2025. My associate contacted the parties to enquire whether, in those circumstances, the motion was pressed. On 24 July 2025, both parties advised that a decision on the motion to set aside the costs order was still required.

5. On 30 July 2025, my chambers was notified that the plaintiff’s notice of appeal lodged to the Court of Appeal was dismissed by Free JA on the basis it was incompetent: Gaynor v Burns [2025] NSWCA 170.

Procedural history

6. The court book comprised the affidavit of the plaintiff’s solicitor, Robert Balzola sworn 7 May 2025 with annexures, the affidavit of the solicitor for the fourth defendant, Robert Sherrington, affirmed 20 May 2025 with annexures, the submissions of the plaintiff dated 8 May 2025, the submissions of the fourth defendant dated 20 May 2025 and the plaintiff’s submissions in reply dated 4 June 2020.

7. In order to understand the basis of the plaintiff’s application it is necessary to set out the procedural history of this matter. I have taken the following history from the material put before me on this application.

8. On 30 May 2024, the plaintiff filed a summons seeking judicial review of the decision of the delegate of the President of the Anti-Discrimination Board (NSW) (“the ADB”). The three defendants were Garry Burns (the first defendant), the ADB (the second defendant) and the Civil and Administrative Tribunal of New South Wales (“NCAT”) (the third defendant). The eighth prayer in the summons sought a costs order.

9. On 6 June 2024, the third defendant filed a submitting appearance and on 11 June 2024 the first defendant filed a submitting appearance.

10. On 24 June 2024, the plaintiff’s solicitor wrote to the Crown Solicitor’s Office noting that the ADB had not as yet filed an appearance and confirming that the matter was listed for directions before the Registrar the following day.

11. A solicitor from the Crown Solicitor’s Office replied by letter (sent by email) that same day. Under a heading “Submitting appearance for Second defendant” it was noted that a submitting appearance on behalf of the ADB had been filed that day and a copy was attached. Confirmation was sought from the plaintiff that no costs order was sought against the ADB, and the plaintiff was advised that if he did not advise otherwise within 14 days it would be assumed that no costs were sought. Then, under a heading, “Attorney General’s participation in proceedings”, it was foreshadowed that the Attorney General was considering both whether to intervene in the proceedings and also whether a notice of constitutional matter should be filed pursuant to s 78B of the Judiciary Act 1903 (Cth). An adjournment of two weeks was sought to consider those matters.

12. On 29 July 2024, the Crown Solicitor’s Office notified the plaintiff’s solicitors by letter that the Attorney General had decided to apply to intervene in these proceedings and be joined “given the nature of the legal issues … and the lack of any other contradictor”.

13. On 30 July 2024, the plaintiff consented to the fourth defendant’s intervention and joinder. Short minutes of order were provided to the Registrar. The only matter not agreed upon between the parties was the question of costs. The plaintiff sought an order that the fourth defendant pay the costs of the amendment to the summons, which was opposed. That costs order was subsequently sought by the plaintiff before the Registrar. No order for costs was ultimately made.

14. An amended summons was filed on 6 August 2024 naming the Attorney General as the fourth defendant. The eighth prayer in the amended summons remained the same, namely, that the plaintiff sought a costs order in the event of being successful.

15. In his response to the summons filed on 16 August 2024, the fourth defendant responded to prayer eight by seeking an order that the amended summons be dismissed with costs.

16. In his written submissions dated 10 October 2024, the plaintiff did not specifically address the question of the appropriate costs order.

17. In his written submissions dated 6 November 2024, the fourth defendant made an express submission (at [99]) that costs should follow the event.

18. At the hearing before me, neither party’s counsel made any submissions regarding the appropriate costs order nor indicated that there should be a further opportunity for submissions as to costs to be made after the hearing. Accordingly, I made an order that costs follow the event which meant the plaintiff was ordered to pay the fourth defendant’s costs.

Submissions

The plaintiff’s submissions

19. The plaintiff’s position is that I should not have ordered him to pay costs because the fourth defendant was an intervener. Rather, I should have made an order to the effect that “each party bear its own costs of the summons”. It was contended that I should vacate the costs order I made on 12 March 2025 and replace it with an order to that effect.

20. It was submitted that an intervener is not normally entitled to costs. Costs should only be awarded, it was submitted, where the intervener is protecting an interest in the proceedings that was different to other defendants. On this basis, the Attorney General is not entitled to costs because the position he adopted is no different to the position and interests to be protected by the ADB. Reliance was placed on the fact that the ADB could have taken an active role, rather than filing a submitting appearance and “the same position could have been achieved”.

21. The plaintiff relied on a number of authorities said to support his submission that that there is no general rule that an intervener will be entitled to costs even where the outcome of the proceedings accords with their arguments, unless the intervention was necessary to protect an interest that is not shared by the primary parties: City of Burnside v Attorney General (SA) (1994) 63 SASR 65 at 67-68 (Debelle J); Arnold v Queensland [1987] FCA 148; 73 ALR 607 at 621 (Wilcox J) (“Arnold”); Johnston v Cameron [2002] FCAFC 301 at [19] (Branson J); Ruddock v Varlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [53] (Beaumont J); Mawhinney v Australian Securities and Investments Commission (No 2) [2022] FCAFC 205 at [31] (Allsop CJ, O’Bryan and Cheeseman JJ); Xat Ky v Australvic Property Management Pty Ltd (No 2) [2007] FCA 1785 at [22]-[23] (Middleton J); Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 at [34]-[38] (Flick J). I shall return to some of these authorities in my consideration below.

22. In his submissions, the plaintiff set out the procedural history of this matter and submitted that it discloses that the fourth defendant was not attempting to protect an interest different to that of the ADB.

23. Further, the plaintiff argued that the correspondence with the Crown Solicitor’s Office shows that the ADB could have taken an active role as contradictor and made the same arguments as were made by the fourth defendant. The motivation for the fourth defendant’s decision to intervene was submitted to be the lack of contradictors, which could have been cured had the ADB taken an active role in the proceedings.

The fourth defendant’s submissions

24. The fourth defendant submitted that the costs order should not be set aside for two reasons: first, because the plaintiff has not provided any explanation for failing to make any submissions on costs at the hearing; and secondly, and in any event, the Court’s costs order was correct.

25. Firstly, it was noted that under r 36.16(3A) of the UCPR an earlier judgment can only be varied in limited circumstances: Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [21] (“Mohareb No 2”); Grygiel v Baine (No 2) [2005] NSWCA 434 at [11] (“Grygiel N**o 2”). The plaintiff has not put on any evidence to explain why he did not make any submissions about the appropriate costs order orally or in writing at the hearing of the summons. On that basis, the plaintiff has not demonstrated a sufficient basis for the costs order to be varied.

26. Secondly, it was submitted that the court’s order as to costs was correct in any event. The usual order for costs should apply because the fourth defendant was the only contradictor, had a legitimate interest in the litigation and took an appropriate role in the proceedings.

27. Further, it was submitted that it was entirely appropriate for the ADB and NCAT to file submitting appearances because decision-makers and Tribunals should only actively defend their decision in subsequent litigation on limited bases: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13 (“Hardiman”). In those circumstances, it was submitted that the court was entitled to proceed on the basis that the plaintiff did not disagree with the fourth defendant’s position that costs should follow the event.

28. Further, and contrary to the plaintiff’s submission, the ADB was not the appropriate contradictor because taking an active role in the proceedings would have risked the plaintiff making an argument of apprehended bias in respect of future decisions: Hunter’s Hill Council v Minister for Local Government [2017] NSWCA 188 at [352] (“Hunter’s Hill”). It was submitted that the prospect that the ADB may be required to make further decisions in respect of the plaintiff is not remote having regard to his litigious history with the first defendant, Mr Burns.

29. It was submitted that the Attorney General has a distinct interest in the litigation that was not shared with the ADB. He is the responsible Minister for the Anti-Discrimination Act 1977 (NSW) (“the AD Act”). In that role, the Attorney General has his own distinct interest in ensuring that the provisions of the AD Act and the Civil and Administrative Tribunal Act 2013 (NSW) operate so as to ensure that there is an available and effective mechanism for resolving disputes under the AD Act involving residents of different states (as the subject of the main proceedings).

30. Finally, it was noted that the plaintiff consented to the fourth defendant having leave to intervene and being joined to the summons. The plaintiff sought an order for costs against the fourth defendant in respect of the amendment of the summons, which was rejected by the Registrar. It was suggested that in those circumstances the plaintiff’s position that no costs order should be made is one of “opportunism”.

The plaintiff’s submissions in reply

31. The plaintiff made five submissions in reply.

32. First, he sought to distinguish Grygiel No 2.

33. Secondly, it was submitted that the prayer for a costs order was in the summons before the fourth defendant intervened and was merely “retained” in the amended summons. The plaintiff also sought to rely on the correspondence dated 24 June 2024 from the Crown Solicitor’s Office in relation to the submitting appearance of the ADB and the assumption that costs would not be sought if no response was received within 14 days.

34. Thirdly, the earlier costs application made by the plaintiff before the Registrar was submitted to be the product of the fourth defendant’s conduct in seeking an adjournment to consider whether they be joined as an intervener.

35. Fourthly, it was submitted that the decision in Hunter’s Hill was distinguishable because in that case the relevant party had “no cause to be actively involved in the litigation and no reason not to submit” (at [352]). In contrast, the ADB in these proceedings was said to have reason to be actively involved and should have been.

36. Finally, the plaintiff emphasised that the principle in Naqebullah v State of Victoria [2024] VSCA 307 (“Naqebullah”) and Guss v Johnstone [2000] HCA 26; 74 ALJR 884 (“Guss”) is that the general rule is not that costs follow the event but that an intervener neither pays nor receives costs and that there is no general practice of ordering costs in an intervener’s favour if their submissions are accepted.

Consideration

37. Section 98(1)(a) of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the court. Section 98(1)(b) provides that the court has “full power to determine by whom, to whom and to what extent costs are to be paid”. This discretion is subject to the qualification that it “must be exercised judicially in accordance with established principle and factors directly connected with the litigation”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65] (McHugh J).

38. Among the fetters on the discretion to award costs are the rules of the court contained in Part 42 of the UCPR. The usual rule is that costs follow the event, unless it appears to the court that some other order should be made: UCPR, r 42.1. There being no reason put to me at the hearing to depart from the usual rule in this case, I ordered that the plaintiff, as the unsuccessful party, pay the fourth defendant’s costs.

39. The plaintiff now contends that I should not have made that order and that I should vary it under UCPR r 36.16(3A) which is, relevantly, in these terms:

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

…

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…

40. The notice of motion was filed 13 days after my decision. The criterion for enlivening the power under r 36.16(3A) is therefore satisfied. The plaintiff bears the onus of establishing that the power under r 36.16(3A) should be exercised: Arjunan v Neighbourhood Association DP No 285853 (No 4) [2023] NSWCA 329 at [12] (Stern JA).

41. As Gleeson and Stern JJA observed in Mohareb No 2 at [21], it is only in limited circumstances that the court will act under r 36.16(3A) to vary an earlier judgment. Recently, Nixon J summarised the relevant principles in APFC No.1 Corporation v Insurance Australia Limited (No 2) [2024] NSWSC 818 as follows at [9]-[13]:

“[9] The power conferred by the rule is to be exercised ‘sparingly and with caution’, having regard to the importance of the finality of litigation: Hollingsworth at [17]; Ranclose at [5(1)]. The rule ‘does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them’: ibid. Instead, the purpose of the power is ‘to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal’: Hollingsworth at [17].

[10] In order to enliven the exercise of the jurisdiction, what must emerge ‘is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing’: Hollingsworth at [18]; Ranclose at [5(2)].

[11] The reference to misapprehension in this context ‘is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect’: Hollingsworth at [20]; Ranclose at [5(3)].

[13] Accordingly, it is only in limited circumstances that the Court will act under rule 36.16(3A) to vary an earlier judgment: Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [21] (Gleeson and Stern JJA).

[14] Ordinarily, questions of costs should be raised and addressed at the hearing rather than by way of separate and subsequent applications: Hollingsworth at [22], citing Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [5]-[7]. The Court in Hollingsworth extracted the following from Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:

‘If [parties] wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known.’”

42. Basten JA considered an application to reopen proceedings to argue a different costs order in Grygiel No 2 and observed the following at [11]:

“Failure to address on costs is commonplace and, with two qualifications which will be addressed below, may properly be taken by the Court as an indication that no special or unusual orders are required. The usual order with respect to costs is that they should follow the event, the Court thus being left to judge the precise terms of an appropriate order in the circumstances which eventuate in the judgment.”

43. His Honour went on to observe this at [12]:

“The first and major qualification to this principle arises where an offer of compromise or settlement has been made which properly should not be disclosed to the Court prior to judgment. … Secondly, there are complex cases which involve interconnected issues and possibly multiple parties. Where different parties are ultimately partly successful only, submissions as to costs may need to follow the handing down of judgment. However, even in these cases, the Court should be entitled to act on the basis that resolution of the issue is not intended to be the subject of further submissions, unless a contrary position has been indicated at the hearing. The burden on the Court of applications to address further in relation to costs after judgment is significant. Inadvertence on the part of the legal representatives will generally not be a sufficient basis for permitting further submissions, even in writing, and certainly not a basis for a further hearing, as appears to have been proposed in the present case.” (Emphasis added.)

44. The plaintiff did not put on evidence to explain the failure to address on costs at the hearing. Nor was any explanation advanced in written submissions on his motion. It was suggested, for the first time, in his submissions in reply that the onus was on the fourth defendant to argue for a costs order, not for the plaintiff to argue why there should not be an order for costs. I do not accept that submission. It is inconsistent with the plaintiff’s approach to costs as set out above in the procedural history. Given the lateness in raising that argument the more likely explanations for the failure to address on this issue at the hearing are either inadvertence or that the argument only crystalised for the first time after my judgment. It is not necessary for me to make any finding in this regard.

45. The plaintiff sought to distinguish the decision in Grygiel No 2 on the basis that it concerned a matter where the usual costs order would be expected to be made, as opposed to the present matter where the usual costs order was not expected because the successful party was an intervener. But the principles derived from the decisions relied upon by the plaintiff do not support his position. Further, they show a misunderstanding of the role of decision makers in judicial review proceedings.

46. The plaintiff’s argument relies on decisions in which a party has intervened and there already was an active contradictor. As Allsop P observed in Tonto Home Loans Australia Pty Ltd v Tavares (No 2) [2012] NSWCA 129 at [9], citing Liverpool City Council v Weir (1984) 58 ALJR 213 at 216:

“… an intervener, even a Minister responsible for the administration of the legislation in question in the case, cannot expect as of course that the unsuccessful party to the litigation in which he has intruded should bear the extra burden of his costs, even if his intervention was well intentioned and proved to be of assistance to the court.” (Emphasis added.)

47. The principles derived from these decisions would have been applicable if, for example, Mr Burns had taken an active role in these proceedings (rather that filing a submitting appearance) and the Attorney had sought to intervene as well. But the addition of the Attorney as the fourth defendant made him the only contradictor. Thus, the principle that an unsuccessful party should not bear the “extra” burden of his costs does not apply in this matter.

48. Only three of the decisions relied upon by the plaintiff concerned instances where the intervener was the only active contradictor. The first was of these is Naqebullah. The plaintiff relied on the following observation of McLeish, Niall and Lyons JJA in Naqebullah at [114] (footnotes omitted):

“The general rule is that an intervener neither pays nor receives costs, and there is no usual practice of ordering costs in an intervener's favour if their submissions are accepted, even if the intervention proved to be of assistance to the court. Nevertheless, we are conscious that courts have ordered costs in favour of interveners where intervention was necessary to protect the interests of the intervener, or the intervener had a special or legitimate interest in the proceeding that was different to a party’s interest.”

49. It should be noted that the court in Naqebullah went on to order that the applicant pay the intervener’s costs from the time of their joinder.

50. The second decision relied upon was Guss*.* Again, the intervener was the only contradictor, and the High Court ordered that the unsuccessful appellant pay the intervener’s costs. In doing so, the Court observed (at [70]) that, “[t]he intervener, which was earlier substituted as petitioning creditor, has a real interest in the outcome of the appeal, and fulfilled the role of a contradictor. The appellant should pay the intervener’s costs of the appeal”.

51. The third decision in which the intervener was the only contradictor was Arnold. In that case, the unsuccessful party was not ordered to pay the intervener’s costs because, as Wilcox J held at 621-622:

“… the appeal was brought by a public interest group, presenting to the court arguments of substance upon a section of the Freedom of Information Act which had not previously been considered by the court.”

52. It was not contended by the plaintiff that this principle applied to the present application, and I am satisfied it does not.

53. Putting the decision in Arnold to one side, only two of the cases relied upon by the plaintiff pertained to cases where the intervener was the only contradictor and in both of these cases the intervener was awarded costs. The other authorities relied upon by the plaintiff concerned cases where there was the prospect that an unsuccessful party would be ordered to pay more than one set of the successful parties’ costs. That is not this case, and the principles derived from those decisions do not assist. Even if it is accepted that there is no general rule that an intervener receives (or pays) costs, that is not an answer to the issue for determination on this motion given that the question of costs was not raised by the plaintiff at the hearing despite the fact that the fourth defendant had clearly sought them.

54. Nor do I accept the plaintiff’s submission that the ADB had a reason to be actively involved and should have been. The plaintiff has failed to grapple with the fact that the usual practice is for decision makers to file submitting appearances and for the Attorney General to take the role of a substantial contradictor so as to ensure compliance with the Hardiman principle: see eg Marium v Registrar Local Court Blacktown [2022] NSWSC 528 at [15], [18](1).

55. I accept the fourth defendant’s submission that had the ADB taken an active role in these proceedings it would have exposed itself to an apprehension of bias should the plaintiff be a party to further proceedings before it which, given the history of the litigation between Mr Gaynor and Mr Burns, is more than simply speculative.

56. I am satisfied that the fourth defendant acted as the sole contradictor in this matter and played a significant and important role in the proceedings. His submissions were presented efficiently. He did not engage in any conduct that was inappropriate or productive of wasted costs.

57. I do not accept the plaintiff’s submission that the fourth defendant’s intervention was not necessary to protect his interest. That submission was made for the first time in this costs application. The fourth defendant had an interest in the outcome of the proceedings, and I substantially accepted his submissions.

58. As for the plaintiff’s argument that the prayer for a costs order in the amended summons was merely “retained” in the amended summons after the fourth defendant, it is difficult to see how this fact assists the plaintiff in circumstances where no contrary submission was ever made at the hearing. Further, the plaintiff relied on the contents of the letter dated 24 June referred to above at [33]. It is difficult to see how this fact assists the plaintiff either. The usual position of a submitting party is to submit to the orders of the court “save as for costs”.

59. Overall, the plaintiff has not established that this case falls into one of the limited circumstances in which this Court would act under r 36.16(3A) to vary an earlier costs order. No satisfactory reason for failing to raise this issue at the hearing or in written submissions has been provided.

60. Even if, contrary to the position I have arrived at, I was satisfied that I should revisit the costs order I made on 12 March 2025, I would have arrived at the same result. It was appropriate for the ADB, as the decision maker, to file a submitting appearance. The plaintiff’s submissions that it should have taken an active role, so the Attorney did not need to intervene, ought not to be accepted for the reasons I have explained. No proper basis for me to have made any other order for costs than the one I made on 12 March 2025 has been established.

Costs of the motion

61. The plaintiff sought an order in his notice of notion that he be awarded the costs of this motion. No submission on costs was made in his first set of written submissions. In his reply submissions it was submitted (at [6]) that “if the applicant is successful on the motion, he does not seek costs against the AGNSW of the Motion”. No submissions were made as to the appropriate costs order in the event that the plaintiff was unsuccessful. I have proceeded on the basis that the plaintiff’s position is that he should not be ordered to pay the fourth defendant’s costs on the motion for the same reasons as have been made in this application, namely, that there is no general rule that an intervener receives costs.

62. In the written submissions filed for the fourth defendant, it was submitted that the notice of motion should be “dismissed with costs”.

63. The fourth defendant has been successful on this motion. The appropriate costs order is that the plaintiff (applicant) should pay his costs for the same reasons that the motion should be dismissed.

ORDERS

64. I make the following orders:

65. The notice of motion seeking a variation of the costs order I made on 12 March 2025 is dismissed.

66. The plaintiff (applicant) is to pay the fourth defendant’s (respondent’s) costs of the motion.

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