On 2 September 2022 I succeeded in defeating the last of homosexual activist and self-confessed ‘serial litigant’ and ‘media whore’ Gary Burns’ 41 complaints against me.
On that day orders were set down for a 2 hour costs application, listed for last Friday.
I have taken some time to consider the events of last Friday and I now provide you this update given the public interest in the contentious nature of anti-discrimination law and the administration of justice in New South Wales and the courts in Australia generally.
I provide you with no commentary and instead detail the facts as I observed them.
Magistrate Susan McIntyre of the NSW Local Court began the hearing by informing my barrister that she had almost finished writing her decision.
She then informed the Court that she had been involved in numerous email communications with Gary Burns. I was not aware of this communication and nor have I been given a copy of this communication.
I was surprised by this admission from Magistrate McIntyre as at the end of the judgement hearing on 2 September 2022 she had warned both parties that she would send the sheriff if either party attempted to communicate with her.
I believe that her warning was intended to give the impression that either I or my legal representatives had been improperly communicating with her. No such improper communication has occurred and earlier in these proceedings Magistrate McIntyre had to retract baseless and false accusations against my solicitor asserting that he had communicated directly with her and had attempted to bully or intimidate her.
She claimed that because she had withdrawn her false accusations that there was no apprehension of bias in her ability to continue hearing Gary Burns’ claims, even though Gary Burns had used her statements to lodge a baseless complaint against my solicitor and to attack his reputation in public.
Magistrate McIntyre then informed the Court that she had obtained Gary Burns’ permission in writing for the hearing to be conducted in his absence.
Magistrate McIntyre also stated, to the best of my recollection, words to the effect that ‘Mr Burns probably does not want to waste his time with another pointless hearing’.
Magistrate McIntyre then refused to allow my barrister to provide oral submissions in relation to my costs application, in part because Gary Burns was not in attendance at the Court.
The Court did accept some evidence that was mostly derived from affidavits I had previously filed in relation to each of the three matters against me in mid-2021 and it then adjourned for a short period.
When the Court resumed, Magistrate McIntyre made the following determinations about my submissions and my costs application.
Rejected submission that Gary Burns did not comply with Court Orders
The Court ordered that submissions in relation to costs should be limited to two pages – double-spaced. My submissions and submissions in reply complied with this order although it made it difficult to provide much detail in support of my application which dealt with eight years of failed litigation against me.
Gary Burns’ submissions were almost two full pages of single-spaced text (almost double the length allowed) and they were filed and stamped by the Court on 27 September 2022.
Magistrate McIntyre rejected my submission that Gary Burns had again flagrantly violated the directions of the Court. She emphatically declared that his two page submission did not violate her orders because it was a one page submission.
Magistrate McIntyre then went on to declare that Gary Burns had complied with every order of the Court ‘to a T’.
For context, Gary Burns was directed on multiple occasions to provide evidence of his complaints in affidavit form on 6 October 2020, 8 December 2020 and 25 February 2021.
I never received any affidavit containing his complaints or evidence to support them. This resulted in confusion during the hearing to such an extent that Magistrate McIntyre has admitted in her judgement to altering Exhibit 2 after the final hearing. I am still unaware now what Exhibit 2 consists of in these proceedings and I was not able to provide oral evidence in relation to this Exhibit or to put questions to Gary Burns about it.
Gary Burns was also warned to obtain legal representation on 25 February 2021. He never did so.
Magistrate McIntyre declared on Friday that Gary Burns did obtain legal representation or advice. No solicitor or counsel ever appeared on the record for Gary Burns. If one has acted for him in these matters, his appearance has not been declared and his correspondence has not been provided to me.
Rejected submission that Gary Burns made baseless claims
In matter 18/111706, Gary Burns claimed that I had ‘falsely asserted that the Plaintiff had requested “Islamic Organisations” take action against the Defendant’.
I did write an article on 22 October 2014 on my webpage regarding Gary Burns’ complaints against me and his conduct which contained this sentence:
While making these claims, he has published my address and written to Islamic organisations requesting them to take action against me.
The Court has evidence of Gary Burns’ email of 9 September 2014 (and other similar emails) which states:
Dear Islamic Council of NSW,
I refer to Bernard William Gaynor who I allege is inciting hatred and violence against Muslim Australians in 3 ways , via Facebook ,his Blog and Twitter.
Mr.Gaynor’s Facebook page can be seen here https://www.facebook.com/bernardgaynor
People can publicly vilify religion & islam but it’s unlawful via a public act to vilify Muslims & Homosexuals.
I allege Mr.Gaynor has allowed statement’s to be published on his Facebook that are harmful to Muslim Australians.
Please do not let this ugly and Un-Australian pathetic little man incite hatred against members of the Muslim community.
Seek a remedy through the courts.
The Court has evidence of Gary Burns’ email of 23 October 2014 which states:
If your client Mr.Gaynor doesn’t want his home address known by the Australian public , including Muslims why doesn’t be become a silent elector on the electoral role ?
Mr.Gaynor lives in the QLD electorate of Forde.
I just did a simple electoral role search of your clients name.
I have contacted the Islamic Council of NSW because I allege Mr.Gaynor is inciting hatred against Muslims by a public act. ( the internet )
I have encouraged the Islamic Council to seek legal advice and take action against Mr.Gaynor if they deem his pernicious behaviour has breached the anti-vilification provisions of the Anti-Discrimination Act 1977.
During the hearing of these matters, Gary Burns admitted that he had contacted Islamic organisations about me, as detailed in transcript of 19 November 2021:
Q. And during these complaints that you’ve made to these senior public officials, you have published Mr Gaynor’s address?
A. No, that’s incorrect. What happened was Mr Gaynor raised, vilified Muslims. I wrote to the Islamic Council, which is not a terrorist organisation, and I said that these comments, I believe, vilified Muslims on the ground of race. That’s all I did, okay.
A. There was no – he, Mr Gaynor went to the police and they said “We’re not interested.” It was no, it wasn’t, it wasn’t, it’s no threat, there’s no historic threat to Mr Gaynor, his life, or his family. That’s him, you know, having a Bette Davis moment.
It is true that I lodged a complaint with the NSW police about Gary Burns’ emails and Facebook and webpage posts publishing my address. A ‘Gay Liaison Officer’ refused to take any action on the basis that Gary Burns was exercising his entitlement to free speech. As a result of his emails publishing my address, my family moved residence due to safety concerns.
On Friday Magistrate McIntyre rejected my submission that Gary Burns’ claim was baseless because he had contacted Islamic organisations requesting them to take action against me and admitted to doing so in his oral evidence. To the best of my recollection, Magistrate McIntyre did not provide any reasons for her decision and she did not address any of the evidence before the Court.
Rejected submission that Gary Burns gave false oral evidence
During the hearing on 19 November 2021, Gary Burns was asked on three occasions if he had published my address, as detailed in transcript above and again below:
Q. I’m not too certain what your answer was when I put this to you a moment ago. In this fourth paragraph on page 19, the, the post says “He has published my address.” Did you publish Mr Gaynor’s address to other people?
A. No, no.
Q. Definitely not?
A. I raised it with the police, possibly with the police.
The Court has evidence of Gary Burns’ email of 14 October 2014 (and many similar) which states:
Mr.Gaynor’s home address is [ADDRESS SUPRRESSED] , Park Ridge , QLD , 4125 in case you wish to initiate legal proceedings against him.
Mr.Gaynor’s phone number is [NUMBER SUPPRESSED]
Gary Burns also denied under oath that he had lodged a complaint against me in relation to an article I wrote on or about 28 March 2014 criticising the behaviour in the photo below showing a young boy grimacing a naked man at a ‘Gay Pride’ parade:
Transcript shows that Gary Burns made the following statements under oath:
Q. And, didn’t that earlier post relate to the photograph that we see on page 11 at the top left hand corner of the page?
A. What? The picture of the boy?
Q. The picture of the boy and the male?
A. But that wasn’t the subject of the complaint. It was that, I wasn’t, I wasn’t condoning the—
HER HONOUR: No.
Q. No, no. Did Mr Gaynor make a comment about that photograph in an earlier blog and did you reply to it?
A. I can’t recall without going and checking. If you can bring me to the, one of the complaints, maybe I can recall; it’s been a number of years.
Q. Because quite, when you read the first sentence of this blog, interestingly this homosexual activist was quite concerned about the child in the photo
above. That, that seems to me to indicate there’s been some earlier blogs or complaints in relation to that photograph, and this is a, a reply–
A. I’m not aware of that.
Q. You’re not aware of that?
A. I’m not aware of that and I dispute that.
Q. Do you?
A. Yes, I do.
The Court has a copy of Gary Burns’ complaint about my article which was lodged on 20 May 2014 and which states:
In this complaint I also rely on the graphic publication by Mr.Gaynor of children looking at naked men , pulling faces in presumed disgust of ( homosexuals ) to garner his readership a pernicious commentary in relation to homosexual people ..
On Friday Magistrate McIntyre rejected my submission that Gary Burns had provided false oral evidence to the Court.
Rejected submission that Gary Burns’ claims in the NSW Local Court differed from the complaints referred to NCAT
Under Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW), the NSW Local Court has power to hear matters between residents of different states (which cannot be heard in the Civil and Administrative Tribunal), provided that the application was first made to the Tribunal and the Tribunal would otherwise have jurisdiction to determine it.
The NSW Local Court has the power to hear the claim that was made to the Tribunal.
It is a matter of record that the Tribunal ruled in October 2015 that it did not have jurisdiction under the Anti-Discrimination Act 1977 (NSW) to determine Gary Burns’ complaints against me because there was no jurisdiction under that Act about conduct that occurred outside of NSW. Gary Burns’ appeal to that ruling was dismissed in May 2018.
The NCAT application made in relation to proceeding 18/111676 related to two separate victimisation complaints about publications made on 29 August 2014 on my webpage and 22 October 2014 on my Facebook page.
The claims heard in the NSW Local Court in proceeding 18/111676 were a vilification and victimisation claim about a publication made on 29 August 2014 on my webpage.
The NCAT application made in relation to proceeding 18/111706 related to a vilification complaint against me and an aiding and abetting complaint against the Australian Liberty Alliance in relation to a publication made on 14 January 2016 on my Facebook page.
The claims heard in the NSW Local Court in proceeding 18/111706 were vilification and victimisation claims against me about a publication made on my webpage on 22 October 2014.
Gary Burns admitted in oral evidence that he had not brought any part of his original complaint referred to NCAT in proceeding 18/111706.
On Friday Magistrate McIntyre rejected my submission that Gary Burns had brought different claims against me to those he commenced in NCAT.
Rejected submission that Garry Burns’ claims were made for a collateral financial purpose or were vexatious
Friday was the first time to my memory that any government department, tribunal or Court has considered Gary Burns’ emails stating that he was lodging complaints against me to bankrupt me or for other collateral financial purposes.
For instance, the Court has evidence of Gary Burns’ email of 26 October 2014 which states:
Mr.Gaynor has an asset, namely his house. So if there’s enough complainant’s and complaints are substantiated we can look at taking his house through bankruptcy. This might sound harsh but there’s always a risk for Mr.Gaynor in not settling matters quickly. Mr.Gaynor’s arrogance will be his own nemesis.
The Court also received evidence of Gary Burns’ other communications such as his email also of 26 October 2014 which states:
Mate you can drag this case out for 10 years or longer but I have got your client ( Mr.Gaynor’s ) testicles inmy right hand and I’m going to squeeze them until they fall off.
CHOP THOSE CATHOLIC BIGOT’S BALLS OFF AND FEED THEM TO THE HUNGRY DOGS !
And the Court received evidence of Gary Burns’ more recent email of 12 September 2022 which states:
Dear Bernard Gaymore,
The decision of 2 September 2022 involving us does not clear you of any wrongdoing because the applications were not considered misconceived , frivolous or lacking in substance.
Publish that decision you vile little alleged Christian man.
Your own conduct caused your costs to escalate with 7 Motions , an Interlocutory Application and 2 recusal applications against the Magistrate.
All didn’t seem to go anywhere. All were dismissed.
Bernard Gaynore you have a number of children. Let’s see how life deals with those children ?
One can’t live the life of one’s children.
I verily believe that at some point during your remaining life it will be you doing the suffering in the end.
All I have to do is let life deal with such a vile alleged humanity as yourself.
For the record, I do not email Gary Burns and, as a result, there is no evidence before the Court that I have sent similar communications to him, although Magistrate McIntyre has accused me of being party to ‘awful email exchanges’ and has not retracted that statement.
On Friday Magistrate McIntyre rejected my submission that Gary Burns had lodged complaints to bankrupt me or for a financial collateral purpose.
Magistrate McIntyre also rejected my submission that Gary Burns’ complaints were vexatious.
She did so by finding that the evidence of his emails were irrelevant for the purposes of making any determination that he was motivated by a collateral financial purpose or that he engaged in vexatious conduct. To the best of my recollection, Magistrate McIntyre also made statements implying that I was partly responsible for the nature of Gary Burns’ communications because I had written about his conduct and complaints against me on my webpage.
Rejected costs application
As a result, Magistrate McIntyre ruled that Gary Burns should not be required to pay costs.
It now means that he has not been required to pay costs for any of his 41 failed complaints or claims against me.
I will be consulting with my legal team over coming days and will keep you posted. Please rest assured that I will do all that I can to see that truth and justice is upheld and to ensure public confidence in the Courts is maintained.