Burns v Gaynor [2015] NSWCATAD 24

Burns v Gaynor [2015] NSWCATAD 24

The complaints were not summarily dismissed because the circumstances did not clearly warrant that exceptional step. The authorship issue was a disputed question of fact better determined at the hearing, the jurisdiction and publication arguments concerning "public act" were at least arguable and no binding authority was identified showing the allegations could not be public acts of Mr Gaynor. The material relied on about Mr Burns' own publications and the number of complaints he had made did not establish that his purpose was to annoy or harass Mr Gaynor, particularly where some complaints had been upheld and the complaints were not so weak as to support that inference. No special...

Jurisdiction
Australia
Judgment Date
20 January 2015
Procedural Posture
Homosexual Vilification Complaints Under the Anti Discrimination Act 1977 (nsw); Application for Summary Dismissal / Interlocutory
Outcome
The application for summary dismissal was refused; the application for costs was refused.
Legal Topics
['homosexual Vilification' 'summary Dismissal' 'frivolous or Vexatious Proceedings' 'complaints Lacking in Substance' 'costs']
['anti Discrimination Law' 'civil and Administrative Procedure'] ['homosexual Vilification' 'summary Dismissal' 'frivolous or Vexatious Proceedings' 'complaints Lacking in Substance' 'costs']

Case Brief

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Procedural Posture

Homosexual Vilification Complaints Under the Anti Discrimination Act 1977 (nsw); Application for Summary Dismissal / Interlocutory

Legal Issues

  1. 1 ['Whether the complaints should be summarily dismissed under s 102 of the Anti-Discrimination Act 1977 (NSW) as frivolous, vexatious, misconceived or lacking in substance.' "Whether the respondent's alleged conduct and prior complaints showed that the purpose of the proceedings was to annoy or harass the applicant." 'Whether disputed questions about authorship, publication, jurisdiction and the meaning of "public act" justified summary dismissal.' 'Whether special circumstances justified an award of costs.']

Ratio Decidendi

The complaints were not summarily dismissed because the circumstances did not clearly warrant that exceptional step. The authorship issue was a disputed question of fact better determined at the hearing, the jurisdiction and publication arguments concerning "public act" were at least arguable and no binding authority was identified showing the allegations could not be public acts of Mr Gaynor. The material relied on about Mr Burns' own publications and the number of complaints he had made did not establish that his purpose was to annoy or harass Mr Gaynor, particularly where some complaints had been upheld and the complaints were not so weak as to support that inference. No special...

Court Disposition

The application for summary dismissal was refused; the application for costs was refused.

Orders

  • ["The applicant's application that the complaints be summarily dismissed is refused." "Mr Gaynor's application for costs is refused."]