Author Archives: Garry Burns

About Garry Burns

Gary Burns is an Australian anti-discrimination campaigner. He successfully tested the homosexual vilification provisions of the NSW Anti-Discrimination Act 1977 with a complaint of personal homosexual vilification against broadcaster John Laws and Sydney radio station 2UE that concluded in his favour in 2002.[1] Burns went on to front public interest cases against high profile figures and media establishments for unlawful homosexual vilification.

“ A defendant to publication of defamation on his or her Facebook Page can be liable as a “ secondary “ publisher of those comments because of his or her participation.”

Plaintiff wins $100K in defamation case after arguing Defendant liable for defamatory comments in Facebook post

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Thursday, July 26, 2018

Angus Macinnis, Director of Dispute Resolution at Stevens Vuaran Lawyers, discusses the recent District Court of South Australia defamation case of Johnston v Aldridge [2018] SADC 68 where the Plaintiff won damages assessed at $100,000, including aggravated damages, after the Plaintiff argued the Defendant was liable for defamatory statements made by other Facebook users who commented on the Defendant’s original post. 

Angus Mcinnis Crop

To avoid social media liability, it’s likely that you DO have to read the comments

“Never read the comments” is often said to be one of the cardinal rules of the Internet – indeed, if you need reminding of the importance of the rule, the Internet will helpfully supply you with T-shirts and cross-stitch patterns so that you don’t forget.

However, whenever there is a rule, there will be exceptions which prove the rule. One important exception is that if a business allows comments on its website (or has a Facebook page which allows comments to be posted) it seems that someone will have to read the comments to identify (and if necessary, remove) comments. The reason for this is that even where the business is not the author, comments can give rise to legal liability for the business.

Case of defamatory Facebook comments

The point has been illustrated in a recent South Australian case involving a claim for defamation arising from Facebook posts. The plaintiff not only relied on what the defendant had posted on Facebook, but also relied on defamatory statements made by other Facebook users who commented on the defendant’s original post.

The plaintiff argued that the defendant was liable for the comments as a “secondary” publisher, because by making the original Facebook post, the defendant had “participated” in the publication of the comments by creating the occasion for the comments to be made.

The defendant argued that he had no control over the authors of the comments and that “in any event they were so numerous as to make it ‘impracticable’ for him to remove them”. As the printout of the comments ran to some 190 pages, the court did agree that the comments were “voluminous” but held that although “considerable inconvenience might have been involved”, the inconvenience was “not so great as to make it unrealistic or unreasonable” for the defendant to monitor the comments, particularly as the evidence showed that the defendant recognised that the original post might attract “inappropriate comments”. By making such a post, said the court, “the defendant must be taken to have accepted the responsibility to monitor [the comments] and remove those which were inappropriate or suffer the consequences irrespective of the inconvenience involved”.

The defendant also argued that deleting comments might have created a backlash against the defendant’s views. This argument received short shrift from the court, with the court explaining, “that it was politically inexpedient from [the defendant’s] point of view to delete the comments can be accepted, but political expediency on its own provides no defence to secondary publication.”

Application to businesses on Facebook

The same answer would be given to a business which decided that it was “commercially inexpedient” to delete posts made by customers on Facebook or a website in case that created a backlash against the business. (The underlying dispute between the plaintiff and the defendant had both commercial and political aspects, but the case would have been decided the same way had the dispute involved ordinary commercial statements).

Of course, the fact that businesses can be liable for statements posted by customers (or other people external to the business) on their Facebook pages is not new. In 2011, the Federal Court of Australia considered the issue of who had “published” Facebook and Twitter posts in the context of considering whether a company called Allergy Pathway had breached prior orders of the Court which prevented the company from making misleading statements.

Although the Facebook and Twitter posts had apparently been posted by customers of Allergy Pathway, the Federal Court found that because Allergy Pathway had knowledge of the posts, and also the ability to remove the posts, Allergy Pathway had “published” the posts (even if it had not authored them). To that extent, the recent South Australian case simply extends liability for publication from posts made by others (as considered in the Allergy Pathway case) to comments made by others as well.

Lessons for online publishing

The lesson in all of this is that laws which apply to publishers (which include not just the defamation or misleading and deceptive conduct examples discussed here, but also intellectual property laws and anti-discrimination laws) apply just as much on the Internet, and just as much on social media platforms, as they do to traditional publications.

If your business is using social media for promotion, then your business is in the business of publishing, and if your business does not know much about the law of publishing, you should make it your business to find out. Although liability for secondary publication can be avoided if a publisher “does not know, and could not with the exercise of reasonable diligence have known” of defamatory publication, the need for “reasonable diligence” means that ignorance is much more likely to be expensive than it is to be bliss.

Perhaps the last word in all of this belongs to Henri de Toulouse-Lautrec, who is reported to have said, “I paint things as they are. I don’t comment. I record.” Would sticking to painting, rather than posting on social media, be a good approach to managing liability? For the record, we regret that we must answer that question with a firm, “no comment”.

Angus Macinnis has a broad commercial practice with a focus on dispute resolution, and in particular, on employment and work health and safety law, and intellectual property law. He advises employers and employees on all aspects of employment law, from drafting contracts and employment policies, to dealing with employment related disputes, to dealing with employment and safety regulators.

He has a particular interest in the employment law aspects of social media use and has published in this area in publications including the Law Society Journal, The New Lawyer, and the Internet Law Bulletin, as well as providing regular contributions to AHRI’s HRM Online website. He is a regular speaker at conferences for MCLE providers including the Law Society of New South Wales and the University of New South Wales and also provides training to employer clients in areas including anti-discrimination law.

In the intellectual property area, Angus advises in relation to copyright and trade mark disputes, as well as “trade dress” and passing off disputes. Contact Angus at angus@stevensvuaranlawyers.com

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Religious freedom review enshrines right of schools to turn away gay children and teachers

Jewel TopsfieldBy Jewel Topsfield

Religious schools would be guaranteed the right to turn away gay students and teachers under changes to federal anti-discrimination laws recommended by the government’s long-awaited review into religious freedom.

However the report, which is still being debated by cabinet despite being handed to the Coalition four months ago, dismisses the notion religious freedom in Australia is in “imminent peril”, and warns against any radical push to let businesses refuse goods and services such as a wedding cake for a gay couple.
The review was commissioned in the wake of last year’s same-sex marriage victory to appease conservative MPs who feared the change would restrict people’s ability to practise their religion freely.

Former attorney-general Philip Ruddock has been appointed to ensure religious freedoms are protected as the government pushes ahead with legalising same-sex marriage.

The contents of the report – seen by Fairfax Media – are unlikely to placate conservatives and religious leaders, and will trigger concern within the LGBTI community about the treatment of gay students and teachers.

The report calls for the federal Sex Discrimination Act to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status – something some but not all states already allow.

“There is a wide variety of religious schools in Australia and … to some school communities, cultivating an environment and ethos which conforms to their religious beliefs is of paramount importance,” the report noted.

“To the extent that this can be done in the context of appropriate safeguards for the rights and mental health of the child, the panel accepts their right to select, or preference, students who uphold the religious convictions of that school community.”
Any change to the law should only apply to new enrolments, the report said. The school would have to have a publicly available policy outlining its position, and should regard the best interests of the child as the “primary consideration of its conduct”.
The panel also agreed that faith-based schools should have some discretion to discriminate in the hiring of teachers on the basis of religious belief, sexual orientation, gender identity or relationship status.

The religious freedom review, which was handed to former prime minister Malcolm Turnbull in May, received more than 15,000 submissions.

The panel was chaired by Howard government attorney-general Philip Ruddock and included the Australian Human Rights Commission president Rosalind Croucher, former Federal Court judge Annabelle Bennett, human rights lawyer and priest Frank Brennan and constitutional law professor Nicholas Aroney.

The authors rejected several measures demanded by conservatives, including some which were unsuccessfully floated as amendments to the same-sex marriage legislation passed last year.
The panel did not accept that businesses should be allowed to refuse services on religious grounds, warning this would “unnecessarily encroach on other human rights” and “may cause significant harm to vulnerable groups”.
The review also found civil celebrants should not be entitled to refuse to conduct same-sex wedding ceremonies if they became celebrants after it was was legalised.

The review does not recommend any changes to the Marriage Act. Nor does it recommend a dedicated Religious Freedom Act – championed by several major Christian churches – which would have enshrined religious organisations’ exemptions from anti-discrimination laws.

“Specifically protecting freedom of religion would be out of step with the treatment of other rights,” the report found.

However it did recommend the government amend the Racial Discrimination Act or create a new Religious Discrimination Act, which would make it illegal to discriminate on the basis of a person’s religious belief or lack thereof.
The panel said it had heard a broad range of concerns about people’s ability to “manifest their faith publicly without suffering discrimination”.
This included wearing religious symbols and dress at school or work, communicating views based on religious understandings, obtaining goods and services and engaging in public life without fear of discrimination.

The report also recommends federal legislation “to make it clear” that religious schools cannot be forced to lease their facilities for a same-sex marriage, as long as the refusal is made in the name of religious doctrine.

Prime Minister Scott Morrison last month told Fairfax Media new religious freedom laws were needed to safeguard personal liberty in a changing society.
“Just because things haven’t been a problem in the past doesn’t mean they won’t be a problem in the future,” he said.
While the panel accepted the right of religious school to discriminate against students on the basis of gender identity or sexual orientation, it could see no justification for a school to discriminate on the basis of race, disability, pregnancy or intersex status.

It said the states should abolish any laws that allowed for discrimination against teachers or students on this basis.

Religious schools already enjoy exemptions from discrimination laws when it comes to hiring teachers in all jurisdictions.

Some religious groups argued these exemptions should be retained while LGBTI groups – who told the panel of the stress and mental health pressure on teachers forced to hide their identity – called for them to be repealed.
“(An) example was given of an employee at a religious school who was employed despite being open about being same-sex attracted,” the report said. “Later, when the leadership of the school changed, that teacher was dismissed on the basis of his sexuality.”

Last year's same-sex marriage victory triggered the religious freedom review.
Last year’s same-sex marriage victory triggered the religious freedom review. CREDIT:AAP

The panel found that when it came to employment in religious schools, “undoubtedly the most difficult issue” was exceptions for sexual orientation and gender identity and marital status in light of the passage of marriage equality.

It recommended the Commonwealth law be amended to allow this discrimination, but only if the school had a publicly available policy.

“For the panel, the key to the maintenance of existing exceptions (to discrimination law) is clarity and transparency…”.
The report also recommends the states ensure existing same-sex teachers are not discriminated against if they get married to a same-sex partner.
The panel also found that blasphemy laws are out of step with a modern, tolerant, multicultural society and should be abolished, and said there was an absence of any concrete indications that funding to faith-based charities was under immediate threat.

ANTI – HOMOSEXUAL Bernard Gaynor seeks injunction in NSW Supreme Court against Sydney Anti-Discrimination Campaigner Garry Burns & Ors

MEDIA RELEASE

FOR IMMEDIATE RELEASE
ANTI-HOMOSEXUAL, ANTI-ISLAM BERNARD GAYNOR SEEKS SUPREME COURT INJUNCTION AGAINST SYDNEY GAY RIGHTS ACTIVIST GARRY BURNS
6 October 2018
Anti-Islam, Anti-Homosexual and failed political candidate Bernard Gaynor has commenced legal proceedings in the NSW Supreme Court against the NSW Local Court. The NSW Civil & Administrative Tribunal ( NCAT ). The President of the NSW Anti-Discrimination Board ( ADB ) and Sydney gay rights activist Garry Burns.
Mr Burns is the fourth defendant in those proceedings.
Mr Gaynor seeks declarations that any past claims ( homosexuality vilification complaints ) that Mr Burns’ made against him in presence of any other defendant’s are void. He also seeks prohibitions against either the President of the NSW ADB referring or authorising such complaints.
The Summons ( filed 26 July 2018 ) by Mr Gaynor seeks review of decisions of the local court, ADB and NCAT “ to refer the complaints of Mr Burns and the actions of each defendant doing so”. However the Summons fails to refer to 30 ( 1 ) ( b 2 ) inserted into the Local Court Act, giving it jurisdiction to hear substituted proceedings within the meaning of Part 3A of the NCAT Act.
Mr Burns said, “ This is one of many puzzling aspect of the Summons, which in many respects is a legally embarrassing document. I have put on a submitting appearance and will take no further part in the proceedings.”
Mr Gaynor “ seeks relief “ from those decisions which had “ the consequence of authorising and referral and maintenance of the proceedings is opaque.
Section 34B ( 2 ) ( a ) of the Civil and Administrative Tribunal Act 2013. It provides that applications involving federal diversity jurisdiction may be made to an authorised court ( ( commenced 18 Dec 2017 ), but likely in respect to earlier lower court decisions in those proceedings. See High Court Decision in Burns v Corbett ( 2018 ) HCA 15.
Section 34B is in Part 3A, dealing with diversity proceedings. Section 3A defines “ authorised  court “ as the Local Court or District Court.
Mr Gaynor seeks declaration that all proceedings Mr Burns commenced in the Local Court against him “ are void and of no effect because no lawful application or appeal has been made”. This is apparently a reference to the fact there has to be an NCAT application or NCAT appeal to be transferred to the Local Court.
Mr Gaynor seems to be challenging the practical operation of the entire Part 3A procedure. It may be arguable but has low prospects of success.
Mr Gaynor seeks numbered 1-5 ;
1, A declaration that Mr Burns complaints “ are void and of no effect”.
2, A declaration that the NCAT President has no power to receive complaints from Mr Burns or the ADB under various provisions of “ the Act “. This is apparently a reference to the Anti-Discrimination Act in relation to referral of complaints to NCAT.
3, A declaration that the NSW ADB president has no power to refer complaints under the Anti-Discrimination Act to the NCAT due to Federal Diversity Jurisdiction ( FDJ ).
4, Seeks prohibition against the Local Court from proceeding with or taking any further steps in respect of the three 2018 Local Court proceedings referred by NCAT against Mr Gaynor. ( Garry Burns ADB complaints )
5, Seeks injunction against all defendant’s ( including Mr Burns ) restraining them “ from maintaining or bringing any complaint or further complaint before “ the Local Court, and presumably NCAT or the ADB ( rather than their President’s, on basis of the Federal Diversity Issue ( FDJ ).
“ In short the essential point of Mr Gaynor’s Summons is misconceived and likely to fail.”
“ Mr Gaynor’s Summons wouldn’t be capable of buttering a plate of parsnips for the dinner table because it’s just incongruous,” said Mr Burns.
ENDS
 
Garry Burns
0407-910-309
02-9363-0372
 
0413-722-995

Abbott Found Guilty

Burns V Abbott Decision 

(click link above to read full Court documents)

“ Former convicted Blackshirts leader John Abbott was found guilty of vilification of Mr Burns by a court. Mr Abbott has to pay Mr Burns $4,000 within 14 days of the Judgement. “

Mr Abbott also has to publish an apology on the website where the vilification of me was published by him, and if he doesn’t he will have to pay me another $1,000.

 

 

CORBETT CASE ENDS

HS-20180906 – Original Story Here

corbett

corebett1

 

Corbett’s Motion on “Costs “ fails

NSW Crest

Supreme Court New South Wales

Medium Neutral Citation:
Burns v Corbett [2018] NSWSC 1347
Hearing dates:
Dealt with on the papers in Chambers
Date of orders:
04 September 2018
Decision date:
04 September 2018
Jurisdiction:
Common Law
Before:
Campbell J
Decision:
No order as to costs to the intent that each party will bear his or her own costs of the proceedings in the Common Law division

Catchwords:
COSTS – motions dismissed – general rule – whether complaint was brought in public interest – whether there was a delay by a party – federal diversity argument – whether the matter was an appeal for the purpose of the Suitor’s Fund Act 1951 (NSW) – substance over procedure – parties pay own costs
Legislation Cited:
Anti-Discrimination Act 1977 (NSW), ss 49ZT,114
Civil Procedure Act 2005 (NSW), s 98
Service and Execution of Process Act 1992 (Cth)
Suitors’ Fund Act 1951 (NSW), ss 2, 2A, 6, 6C
Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 28.2, 42.1
Cases Cited:
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Pty [1951] 1 All ER 873;
Burns v Corbett [2018] HCA 15; 92 ALJR 423;
Burns v Corbett [2017] NSWCA 3; 316 FLR 448;
Burns v Corbett [2016] NSWSC 459;
Jones v Trad (No 3) [2013] NSWCA 463;
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11;
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229;
Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2) [1953] 1 WLR 1481;
Tu v University of Sydney (No 2) [2002] NSWADTAP 25
Texts Cited:
Nil
Category:
Costs
Parties:
Gary Burns (Plaintiff)
Tess Corbett (Defendant)
Representation:
Counsel:
K Madgwick (Plaintiff)
J Loxton (Defendant)

Solicitors:
Allens (Plaintiff)
Robert Balzola & Associates (Defendant) 

File Number(s):
2014/280109

JUDGMENT

  1. The plaintiff commenced proceedings charging the defendant with contempt of court. The statement of charges contained two counts based on non-compliance with a judgment of this court entered on 24 September 2014. This judgment was entered under s 114 of the Anti-Discrimination Act 1977 (NSW) (“Anti-Discrimination Act”) facilitating the enforcement of non-monetary orders made under that Act by, so far as is presently relevant, the New South Wales Civil and Administrative Tribunal (“NCAT”). Under s 114 a certificate of the Registrar of NCAT, of the making of its orders once filed in the Registry of this court, operates as a judgment of the court.
  2. In circumstances that it is unnecessary to state the defendant did not comply with the judgment and the contempt proceedings which were commenced by a notice of motion came before me for hearing on 15 April 2016.
  3. The defendant defended the charges by impugning the validity of NCAT’s orders. The first ground of invalidity was that the service of the documents initiating proceedings in the Tribunal was not effected in accordance with the Service and Execution of Process Act 1992 (Cth), the defendant at all material times being a resident of Victoria.
  4. The second ground of invalidity related to the interpretation of s 49ZT of the Anti-Discrimination Act. The argument was that the State Act could not apply to public acts of the defendant performed in the state of Victoria.
  5. Although the plaintiff was at all material times a resident of this State, no objection to the Tribunal’s jurisdiction was advanced on a ground arising out of the High Court of Australia’s federal diversity jurisdiction.
  6. The factual basis for the defence was founded on the defendant’s affidavit of 1 March 2016. The defendant did not appear on 15 April 2016 in compliance with the requirement that she attend for cross-examination. When her counsel sought to read the affidavit counsel for the plaintiff objected and the defendant was forced to apply for an adjournment which I granted.
  7. In my judgment granting the adjournment ([2016] NSWSC 459 at [19]) I made the following observation:

“The application for costs is a strong one. However, given the misunderstanding between solicitor and client, I am of the view that I should reserve costs until the defendant attends to give evidence and is given an opportunity of offering her own explanation, if she wishes to do so, for her non-attendance today. I repeat, the merit of the plaintiff’s application is obvious but for the single reason expressed I will reserve the question of costs.”

  1. When the hearing resumed before me on 4 May 2016 I raised with the parties the question of whether the Tribunal could exercise the federal diversity jurisdiction. Counsel required time to consider the matter. On 26 July 2016 under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) I ordered the questions relating to the Tribunal’s jurisdiction be determined separately before any further hearing of the contempt charges and under r 1.21 I removed those questions to the Court of Appeal.
  2. The federal diversity question was answered adversely to the plaintiff by the Court of Appeal ([2017] NSWCA 3; 316 FLR 448) on further appeal to the High Court, the Court of Appeal’s decision was upheld, albeit, the reasoning was somewhat different: Burns v Corbett [2018] HCA 15; 92 ALJR 423.
  3. When the hearing resumed before me following the High Court appeal on 9 May 2018 the motion of each party was dismissed by consent and at the request of the parties I made directions as to the filing of written submissions as to costs. This is my decision as to costs.

Plaintiff’s submission

  1. Solicitor for the plaintiff, Mr Martignoni, raised three specific points in his written submissions. First, that the plaintiff brought the complaint in the public interest. Secondly, that the defendant’s failure to bring forward the federal diversity argument resulted in delay and created unnecessary costs in the proceedings. And finally, if I were unpersuaded and costs were to be awarded against the plaintiff, then the plaintiff should have a certificate under s 6 of the Suitors Fund Act 1951 (NSW) (“Suitors’ Act”).

Public interest

  1. Mr Martignoni submits there is a great public interest in upholding the rule of law, and that the Court is obliged to have regard to “the chilling effects” of a costs order made against an individual complainant who is effectively making a complaint in the public interest, in a jurisdiction that seeks to protect and provide the observance of fundamental human rights: Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [39]. In support of this public interest, Mr Martignoni reminds me that the plaintiff sought a public apology and that this statutory legal remedy offered no financial gain or incentive to the plaintiff personally.

Federal diversity argument

  1. Secondly, Mr Martignoni submits that the defendant should not be entitled to compensation by an award of costs in these proceedings because the defendant did not raise the federal diversity argument initially, and this resulted in unnecessary costs. Mr Martignoni further raises, counsel for the defendant did not in fact raise this argument until it was mentioned by the Court on 4 May 2016. Mr Martignoni submits the costs involved would have been reduced if the defendant brought the argument forward in a timely manner.
  2. If I were not persuaded by this ground, Mr Martignoni argues a successful party may recover only a proportion of its costs if its conduct at trial was such as to unreasonably prolong the proceedings: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] and [15].

Suitors’ Fund Act

  1. Finally, Mr Martignoni raises the point that if costs are ordered against the plaintiff then they ought to be given a certificate under the Suitors’ ActSection 6 of the Suitors Act invests power in the Supreme Court to grant an unsuccessful respondent to an appeal an indemnity certificate in respect of the costs of the appeal. An indemnity certificate entitles the respondent to be paid a sum from the Suitors’ Fund to offset the costs awarded against him or her.
  2. Mr Martignoni submits that these proceedings are akin to an appeal as they arise out of a mistaken view of the law on part of the Appeal Panel, NCAT in these proceedings, and consequently the matter ought to be considered an appeal for the purposes of the Suitors Act: s 2(1).
  3. Further to this, Mr Martignoni explains the plaintiff is not financially able to satisfy any costs order made against him, and urges this to be a consideration.

Defendant’s submission

  1. Solicitor for the defendant, Mr Balzola submits that the defendant is entitled to costs. In written submissions he acknowledges costs are in the discretion of the Court: s 98 Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”), and invokes the rule that unless another order should be made, the usual order is that costs follow the event: UCPR 42.1.

Entitlement to costs

  1. The importance of judicial consistency is drawn upon by Mr Balzola, by invoking his Honour, Mason CJ in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2) [1953] 1 WLR 1481 at 1481, where his Honour outlined the importance of the result in litigation in guiding an arbitrator’s discretion as to costs.
  2. Mr Balzola also refers to the judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (“Oshlack”) at para 69, where his Honour recounts the relevant principle from Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Pty [1951] 1 All ER 873 at 874 as follows:

“The ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.”

His Honour further details the scenarios whereby a Court is permitted to depart from the usual order as to costs, and they are as follows: first, when the successful party by its lax conduct effectively invites the litigation; secondly, when the successful party unnecessarily protracts the proceedings, thirdly when the successful party succeeds on a point not argued before a lower court; fourthly, when the successful party prosecuted the matter for the sole purpose of increasing costs that are recoverable; and finally, when the successful party obtains relief which the unsuccessful party had already offered in settlement.

Reserved cost

  1. Mr Balzola submits the reserved costs should be awarded to the defendant because the High Court and the Court of Appeal both found it was unnecessary for the defendant to attend Court on 15 April 2016 notwithstanding the fact the plaintiff was seeking an adjournment. These findings were based on the fact the defendant would have had to travel from Western Victoria to New South Wales, and this was not feasible because the defendant is a pensioner.

Public interest

  1. Mr Balzola acknowledges the heart of litigation is the public interest, however, he rejects the plaintiff’s proposition that the public interest aspect of this case entitles the Court to depart from the general rule, because the plaintiff pursued this claim out of a personal interest: cf Jones v Trad (No 3) [2013] NSWCA 463 at [21].

Federal diversity argument

  1. Mr Balzola submits that the federal diversity argument was first enlivened when the issue was brought to this Court. This forum choice was made by the plaintiff, and it is therefore safe to accept the plaintiff would shoulder the risk of the question of jurisdiction being reopened. To put it simply, the strike out application of the contempt proceedings was a foreseeable consequence of the plaintiff’s own action in bringing the proceedings to this Court. Mr Balzola then submits that, as a result of the plaintiff’s action the onus lay with the plaintiff to show the Court has jurisdiction, and the power to hear and determine the matter. In short, the defendant argues that the fact she did not raise the federal diversity argument earlier is of no relevance because she did not bear the obligation to assist the Court. Consequently, any delay was not a delay caused by the defendant.

Suitors Fund Act

  1. The defendant acknowledges if the Court takes the view that the defendant’s action in substance has had the effect of an appeal, the Court can issue a certificate under s 6 of the Suitors’ Fund Act. The defendant, however, submits if it the Court is not persuaded because the action does not strictly form an appeal the plaintiff is entitled to apply for a sum of no more than $10,000: s 2A Suitors’ Fund Act. If the Court takes this view, s 6C of the Suitors’ Fund Act may apply. This provision provides if a party is liable to pay costs and the party is not entitled to a payment from the Suitors’ Fund, the Director-General may, with agreement of the Attorney General, pay from the Suitors’ Fund such monies towards the costs, as assessed in the circumstances.

Decision

  1. The Court is empowered to determine by whom and to whom costs will be awarded: s 98 Civil Procedure Act. I am conscious that, this judicial discretion is not unqualified and cannot be exercised capriciously. This broad judicial power must be exercised in accordance with the well-established principle and factors that are directly connected with the litigation: Oshlack. This balancing exercise is guided by a variety of principles, not the least of, which underpin the usual order. This includes the consideration that the successful party should be compensated for the expense incurred in bringing or defending the case as the case may be. There are principal exceptions to the general rule.
  2. In relation to the first issue of public interest, I acknowledge the vilification of persons for gender, race or sexuality, as is in this case, generally or specifically, has been condemned as unlawful. The defendant claims the plaintiff pursued the proceedings on a personal basis. Regardless of the frequency of the plaintiff pursuing complaints like this, there is no factual basis put forward by the defendant to support that the only reason for pursing it is personal. On this basis, I am not satisfied that the plaintiff only pursued the proceedings on a personal basis. However, it is important to note, public and personal interests are not mutually exclusive; they can, and commonly do, align. Whether in this case I should apply a public interest exception to the usual order should be evaluated by reference to the decision actually made. The plaintiff’s case failed because the Court of Appeal and the High Court determined that NCAT has no power to exercise federal diversity jurisdiction. It is difficult to characterise proceedings built on a tribunal determination of no legal effect as brought in furtherance of the rule of law.
  3. Moving on to the delay argument, although the plaintiff brought the claim and chose the forum, and therefore bore the onus of proof, there is no duty or legal obligation requiring a plaintiff or any party to make good the defendant’s case. Had the defendant raised the critical point at the outset significant costs would have been saved, in particular I would not have embarked upon a hearing on the merits on 15 April 2016. Nor would it have been necessary to adjourn that hearing which resulted in wasted costs. That the point was only identified when the Court raised it subsequently brings the case into a category analogous to McHugh J’s third possible exception expressed in Oshlack when a party succeeds on a point not argued before a lower court.
  4. I am aware that the defendant obtained an order for costs in her favour in each of the higher courts. However, the considerations at first instance are not identical. As I said in my 2016 judgment the plaintiff had a strong prima facie case for a wasted costs order when the matter was adjourned in April 2016. I stayed my hand then only to give the absent defendant the opportunity to explain her absence. Although there has been no further hearing before me because the proceedings were removed to the Court of Appeal, no explanation has been given for the defendant’s failure to attend for cross-examination. It remains that the plaintiff has a strong case for the wasted costs. It is no real answer in the circumstances to say that it was not necessary for the defendant to attend because the proceedings in this Court had misfired. No question of this Court’s jurisdiction arises; the question was about NCAT’s jurisdiction.
  5. Balancing the defendant’s overall success with the plaintiff’s strong presumptive right to a wasted costs order which would survive an adverse outcome of the proceedings as a whole I think it appropriate to set those considerations off against one another. It is a well-established principal that it is in the Court’s discretion to make a costs order that reflects the degree of ‘success’ enjoyed by each party. It is also, however, widely accepted that there is a necessity for practical justice to prevail over fixed rules of procedure. On that basis, considering all the circumstances, it is most appropriate that no order of costs should be made against either party.
  6. Given my decision, it is not necessary, nor would it be appropriate to decide whether the Suitors’ Fund Act applies. However, I doubt enforcement proceedings of this type would fall within the meaning of ‘appeal’ notwithstanding the width of the definition in s 2 of that Act.

Orders

  1. No order as to costs to the intent that each party will bear his or her own costs of the proceedings in the Common Law division.

**********

Amendments

05 September 2018 – Paragraph 13 “Ms Martignoni” amended to “Mr Martignoni”

05 September 2018 – Paragraphs 11; 12; 13; 14; 15; 16; 17 “Ms Martignoni” amended to “Mr Martignoni”

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” Mr GayNor this latest stunt will fail and I will get a merits hearing against you in the NSW Local Court.”

Mr GayNor is seeking prohibition to prevent a person lodging a complaint against him or from being heard in the local court will fail.

Image result for bernard gaynor

Bernard GayNor

The following is an extract from Mr GayNor’s Blog –

One month ago I announced that I would be taking legal action against the ‘Anti-Discrimination Thought Police’ in New South Wales for the ongoing and unlawful persecution I have faced for my views on marriage, family and morality.

Since then I have been working non-stop to prepare that legal case.

And late last week I filed a summons in the New South Wales Supreme Court seeking rulings against the President of the New South Wales Anti-Discrimination Board (ADB), President of the New South Wales Civil and Administrative Tribunal (NCAT) and the New South Wales Local Court.

I am seeking declarations that the President of the ADB, President of NCAT and the Local Court have no power to hear complaints against me and prohibition orders preventing any further action.

I have been forced to take this action after continued attempts to hear complaints against me, despite a unanimous High Court ruling in April that it was unconstitutional to do so.This shows that the ‘Thought Police’ are prepared to break the law to enforce their radical worldview on all Australians.

They are menace to society and freedom and should be abolished.

I must admit that I have been increasingly stressed after four years of unlawful litigation and persecution. However, I am very proud to have taken this latest step.

This will be a landmark case and it will put the ‘anti-discrimination industry’ on trial for the first time in Australian history. In essence, we are now on the attack and we need to continue.