Australia, April 12 -- New South Wales Land and Environment Court issued text of the following judgement on March 12:

1. On 29 December 2023, Mr Garry Burns, the first defendant, lodged a complaint with the President of the Anti-Discrimination Board (NSW) ("the ADB") in respect of a YouTube video posted by Mr Bernard Gaynor, the plaintiff, on "X" (previously "Twitter") on or about 27 November 2023. Mr Gaynor alleged the video constituted homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 (NSW) ("the AD Act").

2. This complaint by Mr Burns is the most recent in a long series of similar complaints made by him about Mr Gaynor. Mr Gaynor is a conservative blogger whereas Mr Burns is a self-described gay Australian anti-discrimination campaigner. These two men have been mired in legal disputes for some years. The legal complexity of Mr Burns' otherwise relatively straightforward complaints arises from the fact that Mr Burns resides in New South Wales ("NSW") whereas Mr Gaynor resides in Queensland. Some of the previous decisions concerning the long running animus between these two men are relevant to these proceedings including: Burns v Gaynor [2015] NSWCATAD 211; Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 ("Burns v Corbett (CA)"); Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 ("Burns v Corbett (HC)"); Gaynor v Local Court of NSW [2019] NSWSC 805 and Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48.

3. On 15 January 2024, Mr Gaynor's complaint was accepted by the ADB and on 15 April 2024 the complaint was referred to the NSW Civil and Administrative Tribunal ("NCAT"). By amended summons filed on 6 August 2024, the plaintiff seeks judicial review of the two decisions made by the Delegate of the ADB ("the Delegate"): the decision on 15 January 2024 made pursuant to s 89B of the AD Act to accept the complaint of homosexual vilification made by the defendant against the plaintiff; and, the decision on 15 April 2024 made pursuant to s 93C of the AD Act to refer that complaint to NCAT.

4. In short, the plaintiff submits that the ADB lacked jurisdiction to accept and refer the complaint because whereas Mr Burns resides in New South Wales (NSW), Mr Gaynor resides in Queensland and the alleged "public act" did not occur in NSW.

5. Three grounds are set out in the amended summons in these terms:

"1 The plaintiff claims that each decision of the Delegate was affected by a lack or want of jurisdiction, in that:

(i) The Anti-Discrimination Board of New South Wales had no jurisdiction to accept for investigation a complaint pursuant to s 49ZT of the Anti-Discrimination Act 1977 (NSW), made by a resident of New South Wales against a resident of Queensland.

(ii) The Anti-Discrimination Board of New South Wales had no jurisdiction to accept for investigation a complaint pursuant to s 49ZT of the Anti-Discrimination Act 1977 (NSW), made by a resident of New South Wales against a resident of Queensland in respect of an alleged public act not made in New South Wales within the meaning of s 49ZS of the Anti-Discrimination Act 1977 (NSW).

2 The Delegate, in deciding to accept and then to refer the complaint No. C2024-0017 failed to take into account in respect of each decision, relevant considerations, namely, that the jurisdictional facts set out above were not satisfied.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19582425f4efef6537ce39c1)

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