Gaynor v Burns [2023] NSWSC 847

Gaynor v Burns [2023] NSWSC 847

The orders of the Local Court on the Retrospectivity Application were interlocutory and did not finally dispose of the rights of the parties (necessitating leave for appeal under s 40 of the Local Court Act 2007 (NSW)). No sufficient justification for leave to appeal was established as the applicant provided no...

Source-derived case information.

Parties
Applicant: Bernard Gaynor; Respondent: Garry Burns
Jurisdiction
Australia
Judgment Date
20 July 2023
Procedural Posture
Appeals – Leave to Appeal From Local Court Decisions (interlocutory Decision and Costs Decision) / Determination of Applications for Leave to Appeal and Dismissal of Summonses
Outcome
Leave to appeal refused; summonses dismissed; no order as to costs in both applications.
Legal Topics
Appeals – Interlocutory and Final Decisions, Jurisdiction of Local Court, Retrospectivity of Legislation, Costs in Substituted Proceedings, Special Circumstances for Costs, Practice and Procedure
Civil Procedure Administrative Law Anti Discrimination Law Appeals – Interlocutory and Final Decisions Jurisdiction of Local Court Retrospectivity of Legislation Costs in Substituted Proceedings Special Circumstances for Costs +1 more

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Summary, issues, holding and outcome

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Parties

Bernard Gaynor

Applicant

Garry Burns

Respondent

Procedural Posture

Appeals – Leave to Appeal From Local Court Decisions (interlocutory Decision and Costs Decision) / Determination of Applications for Leave to Appeal and Dismissal of Summonses

Legal Issues

  1. 1 Whether the Local Court’s order on jurisdiction (retrospectivity application) was interlocutory or final
  2. 2 Whether leave to appeal is required under the Local Court Act 2007 (NSW)
  3. 3 Whether leave to appeal should be granted (Retrospectivity Application)

Ratio Decidendi

The orders of the Local Court on the Retrospectivity Application were interlocutory and did not finally dispose of the rights of the parties (necessitating leave for appeal under s 40 of the Local Court Act 2007 (NSW)). No sufficient justification for leave to appeal was established as the applicant provided no reasons or evidence warranting leave; the same legal and factual position would result if successful, rendering the appeal futile. In the Costs Application, although the Magistrate at times conflated ‘exceptional’ with ‘special’ circumstances, her Honour considered both standards and made no reviewable error; no special circumstances justifying a costs order were established....

Court Disposition

Leave to appeal refused; summonses dismissed; no order as to costs in both applications.

Orders

  • 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.
  • 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.