Burns v Gaynor [2015] NSWCATAD 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v Gaynor [2015] NSWCATAD 77 Hearing dates: 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The respondent's application for proceedings 1410372 and 1410625 be consolidated is refused. Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 100 Category: Procedural and other rulings Parties: G Burns (Applicant) B Gaynor ( Respondent) Representation: Solicitors: Applicant (self-represented) Robert Balzola & Associates (Respondent) File Number(s): 14106251410372 Publication restriction: Nil

ex tempore Reasons for decision 1. DEPUTY PRESIDENT HENNESSY: This is an application by the Respondent, Mr Gaynor, for two complaints of homosexual vilification made by Mr Burns to be heard in a single proceeding. Mr Burns opposes the application. 2. The decision I make is that the application for consolidation of proceedings 1410372 and 1410625 is refused. 3. The Tribunal has a discretion under s 100 of the Anti-Discrimination Act 1977 (NSW) to deal with more than one complaint in the same proceedings: Single proceeding in relation to several complaints If the Tribunal is of the opinion that two or more complaints arise out of the same or substantially the same circumstances or subject-matter, it may deal with those complaints in the same proceedings. 1. The Tribunal's discretion should be exercised so as to give effect to the guiding principle in relation to practice and procedure which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil and Administrative Tribunal Act 2013 (NSW). 2. The first matter is a complaint of homosexual vilification by Mr Burns against Mr Gaynor that was referred to the Tribunal by the President of the Anti‑Discrimination Board on 5 November 2014. The complaint covers various periods between 10 July 2014 and 5 August 2014 when it was alleged that Mr Gaynor published homosexually vilifying material on his Facebook page. The matter was listed for a case conference on 14 January 2015. As Mr Burns had already filed the material on which he intended to rely, directions were made for Mr Gaynor to file and serve points of reply and evidence by 25 February 2015. The matter was set down for hearing on 5 March 2015. Mr Gaynor did not file any material in compliance with that direction. 3. When the matter was listed for hearing on 5 March Mr Gaynor did not appear at the designated time. He attended following a telephone call and applied for an adjournment. The adjournment was granted on Mr Gaynor's lawyer, Mr Balzola's unconditional solicitor's undertaking that he would file both the points of reply and any evidence on which he relied by 12 March 2015. The matter was listed for hearing on 1 April 2015 at 2pm. 4. The second matter which Mr Gaynor seeks to have joined with the first matter comprises three complaints by Mr Burns of homosexual vilification. The President referred those matters to the Tribunal on 16 July 2014. Those complaints cover various periods between 10 April 2014 and 20 May 2014. 5. Three case conferences have been held in that matter: on 10 December 2014; 5 November 2014 and 17 December 2014. Again by the time of the first case conference Mr Burns had filed his points of claim and evidence. Mr Gaynor was directed to file points of reply and evidence by 8 October and Mr Burns was to respond by 15 October 2014. Mr Gaynor did not file the material as directed. He raised several issues in the second case conference including his wish to summons various material from the President of the Anti‑Discrimination Board. The matter was stood over for a third case conference. At that conference Mr Balzola applied for the matter to be summarily dismissed. The matter was listed for hearing of that issue on 20 January 2015. The application was refused on that date and Mr Gaynor was directed to file and serve points of reply and evidence by 4 February 2015. The matter was set down for hearing on 6 February 2015. 6. Mr Gaynor appealed to the Appeal Panel against the Tribunal's decision to refuse to summarily dismiss the application. That appeal has not been determined. In his application for consolidation of these proceedings Mr Gaynor points to five matters. First he says that two issues are currently before the Appeal Panel - the constitutionality of s 49ZT of the Anti‑Discrimination Act and a jurisdictional argument that because he lives in Queensland his conduct is not covered by the Act. The resolution of those issues, he says, will affect all the complaints that Mr Burns has brought against Mr Gaynor. 7. Dealing with those two matters the question arises as to whether or not the Appeal Panel will indeed consider those arguments given the fact that they were not raised when Mr Gaynor applied for the complaint to be summarily dismissed. They appear to be issues raising new grounds on appeal. As well, if Mr Gaynor wishes to rely on those matters he could do so in any hearing before the Tribunal presuming those matters are part of his defence and Mr Burns is on notice of them. 8. The second matter which Mr Gaynor raised was the refusal of the Tribunal to refer the matter to mediation. No evidence was provided as to the history of any attempts at conciliation or mediation but I accept for the purposes of these proceedings that mediation has been discussed at the various case conferences which the parties have attended. The decision as to whether the matter is to be referred to mediation is in the sole discretion of the Tribunal and is not a matter which may be the subject of any appeal. The failure of the Tribunal to refer a matter to mediation is not a relevant consideration in determining whether or not these proceedings should be consolidated. 9. Thirdly, Mr Gaynor raises questions about the conduct of the President of the Anti‑Discrimination Board in dealing with these matters. The Tribunal's jurisdiction is founded on the referral of the complaint by the President of the Anti‑Discrimination Board to the Tribunal. That jurisdiction comes from the President's report and the attachments to that report. What the President has or has not done in pursuit of his own powers is not a matter which is relevant to the consideration of whether any proceedings should be consolidated. 10. Fourthly, Mr Gaynor appears to imply from a question he says I asked on 20 January 2014 that the Tribunal has expressed a view that the matter should be consolidated. Mr Balzola submitted that on that date I asked a question as to whether consideration had been given to the consolidation of the proceedings. There is no significance whatsoever in the Tribunal asking such a question nor can that question, if it was asked, be used in support of Mr Gaynor's application for consolidation. 11. Finally, Mr Balzola makes the point that the Tribunal should take into account any conduct of the respondent after the alleged publications. For example, it was said that if material was removed from an internet site shortly after Mr Gaynor was put on notice that a complaint had been made that would be a relevant consideration. Indeed that would be a relevant consideration when considering any remedy to which Mr Burns may be entitled should a complaint be substantiated; however I fail to see the relevance of that matter to the issue of consolidation which is before the Tribunal today. 12. Mr Burns opposes the application for consolidation on the ground that Mr Gaynor has delayed and failed on several occasions to file defences and evidence in both proceedings and has made interlocutory applications both for summary dismissal and for consolidation of matters in an effort to avoid responding to the substance of the complaints. Mr Burns also sought to differentiate the first matter from the second matter, saying that in the first matter he seeks damages of $100,000 for the publication of statements about him on Mr Gaynor's Facebook page. He describes the second matter as largely a public interest matter although he concedes that the first matter also has public interest elements. 13. In my view the just, quick and cheap consideration of the issues in the first and second matters is best achieved by proceeding with the hearing in the first matter on 1 April 2015. Any matters which Mr Gaynor raises in those proceedings and which have been pleaded by way of defence can be determined at that time. Once determined those decisions would operate in principle in relation to the remaining complaints, even though any decision would not bind the parties in relation to those complaints. Nevertheless any findings could be used as a guideline for further discussion about the resolution of those complaints. As well, if either party disagreed with the Tribunal's decision in relation to a discrete number of complaints that party could appeal to the Appeal Panel in relation to those matters. In my view that is a preferable course to delaying these proceedings further and waiting for an Appeal Panel decision which, in my view, are unlikely to touch upon the issues of jurisdiction or geographic location. 14. The reason for that view is that these were not matters raised at first instance on the application for summary dismissal. Even if that view is incorrect and the Appeal Panel does deal with those matters on Appeal it is highly likely that those matters will be resolved prior to the Tribunal handing down its decision in relation to the first matters. Indeed, Mr Gaynor may well wish to make an application that the decision not be handed down until the Appeal Panel reaches its conclusion, as those matters may have relevance to the Tribunal's decision. Those are my reasons. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 April 2015