Last year brought guidance on, and 2018 will see the ultimate clarification of, the ability of state tribunals to deal with disputes arising between residents of different states. This came in two forms: a decision of the NSW Court of Appeal which has since been appealed to and heard by the High Court, and amendments to the New South Wales Civil and Administrative Tribunal's (NCAT) enacting legislation.

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3

Mr Burns, a NSW resident, complained to the NSW Anti-Discrimination Board about remarks made by Ms Corbett, a Victoria resident, and Mr Gaynor, a Queensland resident, which Mr Burns argued were public acts vilifying homosexuals in breach of the Anti-Discrimination Act 1977 (NSW).

When the former Administrative Decisions Tribunal (now NCAT) ordered Ms Corbett to make a public and private apology and Ms Corbett subsequently refused to do so, Mr Burns commenced proceedings in the Supreme Court of NSW for contempt of court.

Ms Corbett's argued that NCAT did not have jurisdiction because, at all relevant times, she was a resident of Victoria.

The New South Wales Court of Appeal held that:

A state tribunal which is not a "Court of a State" is unable to exercise judicial power to determine matters between residents of two states, because the state law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act (when read with s 39A) of all such jurisdiction in state courts.

Section 39(2) of the Judiciary Act 1903 (Cth) provides, relevantly, that "Courts of the State" have federal jurisdiction in all matters in which the High Court has original jurisdiction. Pursuant to s 75(iv) of the Constitution, the High Court has original jurisdiction in all matters "between States, or between residents of different States, or between a State and a resident of another State". The operation of these provisions means NCAT, which is not a "Court of a State", does not have jurisdiction to hear and resolve matters between residents of different states.

The case was appealed to the High Court which heard the matter on 5 and 6 December 2017, but is yet to hand down judgment.

Justice Legislation Amendment Act (No 2) 2017 (NSW)

The Justice Legislation Amendment Act (No 2) 2017 (NSW) introduced amendments to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to deal with the jurisdiction gap arising from Burns v Corbett. The amendments, which commenced on 1 December 2017, insert Part 3A into the NCAT Act. Specifically, section 34B of the NCAT Act now provides that a person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the District Court or the Local Court instead of the Tribunal.

The authorised court may only grant leave for the application or appeal to be made to the court if satisfied that:

  1. the application or appeal was first made with the Tribunal
  2. the Tribunal does not have jurisdiction to determine the application or appeal because its determination involves the exercise of federal diversity jurisdiction
  3. the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and
  4. substituted proceedings on the application or appeal would be within the jurisdictional limit of the court.

Furthermore, an authorised court may remit an application or appeal to NCAT to determine if the court is satisfied that NCAT has the jurisdiction to determine it.

What now?

We await a decision from the High Court, which heard argument just before Christmas. Follow this link to the transcripts and submissions.

To some extent, given the new provisions now in force in the NCAT Act, the High Court's decision is academic as regards new applications. However, it is worth noting that the amendments to the NCAT Act don't assist matters underway before the amendments took effect. We are aware of a number of matters which are 'parked' awaiting the outcome. The decision will also have a bearing on the jurisdiction of other tribunals in other states, as demonstrated by the Attorneys-General for four other states intervening.

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