Australia: The jurisdiction of the State Administrative Tribunal to resolve disputes when a party moves interstate

A recent case, Sharma and Carlino [2019] WASAT 1, discusses what happens when one of the parties to a dispute referred to the State Administrative Tribunal moves interstate prior to the resolution of the dispute.

Background

The Applicants, while resident in Western Australia, had engaged the services of the Respondents to provide external concrete works to their property in Baldivis.  The Applicants were successful in obtaining a work order from the Building Commissioner, requiring the Respondents to carry out remedial works.

The Applicants alleged that the remedial works as ordered had not been completed and made application to the Building Commissioner for the revocation of the work order and the imposition of a monetary order.

The Respondents disputed the evidence presented by the Applicants in support of their application.  The Building Commissioner then applied to transfer the matter to the State Administrative Tribunal ("Tribunal") for it to deal with the matter pursuant to s.51 of the Building Services (Complaint Resolution and Administration) Act 2001 (WA) (BSCRA Act).

The Tribunal then listed the matter for a directions hearing and sent a notice to the parties advising them of the hearing.  The Applicants responded to the notice, advising that they had moved to New South Wales.  This raised the question of whether the Tribunal had jurisdiction to deal with the matter.

The Applicants advised the Tribunal that they still owned the Property in Baldivis, but there was no evidence before the Tribunal as to when the Applicants became residents of New South Wales.  It appeared to the Tribunal that the move to New South Wales had occurred some time after the Building Commission had made the original work order.

Legislative Framework

In forming its view, the Tribunal considered the High Court case of Burns v Corbett [2018] HCA 15; (2018) 92 ALRJ 43.  That case involved a dispute arising under the Anti-Discrimination Act 1977 (NSW) between a resident of New South Wales and a resident of another State.

In short, the High Court in that case found:

• s.75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth) ("Constitution") reserved federal jurisdiction to the High Court in all matters between residents of different states;
• Pursuant to s.77(iii) of the Constitution, the Commonwealth Parliament was empowered to make laws investing any 'court of a State' with federal jurisdiction;
• That the jurisdiction referred to in s.75(iv) could not be conferred on another organ of government, federal or State;
• It had been accepted by the parties that the Civil and Administrative Tribunal of New South Wales (NCAT) was not a 'court of a State' for the purposes of s.77(iii) of the Constitution; and
• Any provisions in the Civil and Administrative Tribunal Act 2013 (NSW) which purported to confer NCAT with jurisdiction, were to be read down pursuant to s.31 of the Interpretation Act 1987 (NSW) so as to not confer NCAT with jurisdiction to determine a complaint where the Complainant and Respondent to the complaint were 'residents of different States'.

As the Complainant and the Respondent in that matter were residents of different states, the matter fell within federal jurisdiction and as NCAT was not a 'court of a State' it could not exercise federal jurisdiction.

The Tribunal then turned to consider the issues of:

• Whether this proceeding was a "matter" for the purposes of s.75(iv) of the Constitution;
• Whether the Applicant and Respondent were 'residents of different states for the purposes of s.75(iv) of the Constitution; and
• Whether the Tribunal is 'a court of a State' for the purposes of s.75(iv) of the Constitution.

Whether the proceedings were a "matter" for the purposes of s.75(iv) of the Constitution?

After addressing some considerable case history on the meaning of "matter" within s.75(iv) of the Constitution, the Tribunal considered that:

• the proceedings brought, pursuant to s.51 BSCRA, was a concrete controversy between the party in whose favour the work order had been made (Applicant) and against whom the work order had been made (Respondent); and
• the subject matter of the proceeding was whether the work order had been complied with, and if not, whether it should be revoked and replaced with a monetary order.

The Tribunal concluded that the proceedings before it was a 'matter' within the meaning of s.75(iv) of the Constitution.

Whether the Parties were residents of different States for the purposes of s.75(iv) of the Constitution?

In addressing this question, the Tribunal considered the case of The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31CLR 290 (Howe's Case), in which it was considered that s.75(iv) assumed that a resident of one State could not be a resident of another State at the same time.  It was considered that to be resident, required a natural person, to live, dwell and have his home in some place, even if it was for a short period of time.

The Tribunal referred to Watson v Marshall and Cade (1971) 124 CLR 621 and Momcilovic v The Queen [2001] HCA 34 which stood for the proposition that the issue of residence is to be determined as at the date the proceedings are commenced, rather than the date of the conduct in question.

The Tribunal found that the Applicants were residents of Western Australia up until the time the Building Commission made the work order.  However, even though they still owned the property in Baldivis, the Applicants were now living in New South Wales and so were residents of a different State.

Whether the Tribunal is 'a court of a State' for the purposes of s.75(iv) of the Constitution?

In considering this question the Tribunal referred to the decisions of Mustac v Medical Board of Western Australia [2007] WASCA 128, Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138, Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 and Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577.

The Tribunal concluded that it was not a 'court of a State' within the meaning of s.75(iv) of the Constitution.

Conclusion

The Tribunal remarked that neither the Building Commissioner or the Tribunal would have jurisdiction to deal with the matter further, as once the Applicants became residents of New South Wales, the matter became a matter between 'residents of different States'.  As matters of this type fell within the federal jurisdiction preserved by s.75(iv) of the Constitution, it was a matter that could only be addressed by a court of a State.  The Tribunal's lack of jurisdiction to deal with these situations was a matter that could only be addressed by the Parliament of Western Australia.

This is potentially problematic.  For example, a local government may wish to issue a Building Order or a Planning Direction Notice to an owner or occupier of a property within its district.  Assuming the owner or occupier is resident of Western Australia at the time of its application for review, and remains resident in Western Australia throughout the course of the proceedings, this jurisdictional issue will not arise.  However, should the recipient move interstate, at any time prior to the resolution of the matter, the Tribunal will cease to have jurisdiction to hear the matter.  Therefore there would be no ability to have such a Building Order or Planning Direction Notice reviewed other than as part of a prosecution for failing to comply with the Building Order or Planning Direction Notice.

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