Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198820d0d5961f9b76734e33)

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