Attorney General for New South Wales v Gatsby

[2018] NSWCA 254

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Attorney General for New South Wales v Gatsby [2018] NSWCA 254

Hearing dates:

12 April 2018

Date of orders:

06 November 2018

Decision date:

06 November 2018

Before:

Bathurst CJ at [1]; Beazley P at [197]; McColl JA at [198]; Basten JA at [206]; Leeming JA at [279]

Decision:

(1)   In proceeding 2018/66655:

 

(a)   Grant the Attorney General for New South Wales leave to appeal.

 

(b)   Direct the Attorney General for New South Wales to file a notice of appeal in the terms of the draft notice of appeal contained in the white folder.

 

(c)   Set aside the orders made by the Appeal Panel on 14 February 2018 and in lieu thereof answer the questions before the Appeal Panel as follows:

 

Did the Tribunal at first instance have authority to hear and determine the application under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639:

 

(a)   because in doing so it was exercising administrative and not judicial power?

 

Answer:   No.

 

(b) if the answer to question (a) is ‘no’, because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?

 

Answer:   No.

 

(d) Declare that the Civil and Administrative Tribunal of New South Wales is not a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

 

(e)   Declare that the Civil and Administrative Tribunal of New South Wales had no jurisdiction to determine the Gatsby v Gatsby proceeding (RT 15/56639).

 

(f) Remit the proceeding to the Civil and Administrative Tribunal of New South Wales to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW).

 

(2)   In proceeding 2018/66660:

 

(a)   Grant the Attorney General for New South Wales leave to appeal.

 

(b)   Direct the Attorney General for New South Wales to file a notice of appeal in the terms of the amended draft notice of appeal contained in the white folder.

 

(c)   Set aside the orders made by the Appeal Panel on 14 February 2018 and in lieu thereof answer the questions before the Appeal Panel as follows:

 

Did the Tribunal at first instance have authority to hear and determine the application under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/41349 and RT 15/44353:

 

(a)   because in doing so it was exercising administrative and not judicial power?

 

Answer:   No.

 

(b) if the answer to question (a) is ‘no’, because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?

 

Answer:   No.

 

(d) Declare that the Civil and Administrative Tribunal of New South Wales is not a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).
(e)   Declare that the Civil and Administrative Tribunal of New South Wales had no jurisdiction to determine the Dibbin v Johnson proceeding (RT 15/41349) or the Johnson v Dibbin proceeding (RT 15/44353).

 

(f) Remit the proceeding to the Civil and Administrative Tribunal of New South Wales to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW).

 

(3)   In proceeding 2018/71811:

 

(a)   Dismiss the summons for judicial review filed by the Attorney General for New South Wales on 5 March 2018.

 

(b)   No order as to the costs of the proceeding.

 

(4)   In proceeding 2018/71862:

 

(a)   Dismiss the amended summons for judicial review filed by the Attorney General for New South Wales on 20 March 2018.

 (b)   No order as to the costs of the proceeding.

Catchwords:

CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order

CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Review Act 1997 (NSW)
Civil Administrative Tribunal Act 2009 (Qld)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Constitution Act 1902 (NSW)
Guardianship Act 1987 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Judicial Officers Act 1986 (NSW)
Judiciary Act 1903 (Cth)
Justice Legislation Amendment Act (No 2) 2017 (NSW)
Liquor Licensing Act 1997 (SA)
National Security (Landlord and Tenant) Regulations 1941 (Cth)
Residential Tenancies Act 2010 (NSW)
Supreme Court Act 1970 (NSW)
Tribunals Amalgamation Act 2015 (Cth)

Cases Cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2
Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3
Burns v Corbett [2018] HCA 15
Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47
Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85; [2008] FCAFC 104
Commonwealth v Hospital Contribution Fund of Australia (1981) 150 CLR 49; [1982] HCA 13
Dattilo v Commonwealth (2017) 249 FCR 347; [2017] FCAFC 17
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266
Ex parte Coorey (1945) 45 SR (NSW) 287
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46
Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58
Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308; [1912] HCA 42
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36
In re Judiciary Act 1903-1920 and In re Navigation Act 1912-1920 (1921) 29 CLR 257; [1921] HCA 20
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421
Le Mesurier v Connor (1929) 42 CLR 481; [1929] HCA 41
Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31
O’Connor v State of New South Wales [2017] NSWCA 335
Odzic v Commonwealth [2017] FCAFC 28
Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146
Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170
Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5
Paphos Providores Pty Ltd v Ladha (2015) 91 NSWLR 400; [2015] NSWCA 353
Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25; [1943] HCA 13
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253
R v Davison (1954) 90 CLR 353; [1954] HCA 46
R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617; [1981] HCA 51
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; [1956] HCA 10
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1971) 123 CLR 361; [1970] HCA 8
Re Adams and the Tax Agents’ Board (1976) 12 ALR 239
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36
Rigney v Commonwealth [2017] FCAFC 18
Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185; [1944] HCA 17
Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530
Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2
Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
South Australia v Victoria (1911) 12 CLR 667; [1911] HCA 17
Sue v Hill (1999) 199 CLR 462; [1999] HCA 30
Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198; (1988) 82 ALR 175
Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185
Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34

Texts Cited:

E Campbell, "Inferior and Superior Courts and Courts of Record", (1997) 6 J Jud Admin 249
G Lindell, Cowen and Zines’s Federal Jurisdiction in Australia (The Federation Press, 4th ed, 2016)

Category:

Principal judgment

Parties:

In proceeding 2018/66655:
Attorney General for New South Wales (applicant)
Deva Gatsby (first respondent)
Berri Gatsby (second respondent)
Attorney General for the Commonwealth (intervener)

 

In proceeding 2018/66660:
Attorney General for New South Wales (applicant)
Elissa Johnson (first respondent)
Christine Dibbin (second respondent)
Attorney General for the Commonwealth (intervener)

 

In proceeding 2018/71811:
Attorney General for New South Wales (applicant)
Deva Gatsby (first respondent)
Berri Gatsby (second respondent)
Civil and Administrative Tribunal of New South Wales (third respondent)
Attorney General for the Commonwealth (intervener)

  In proceeding 2018/71862:
Attorney General for New South Wales (applicant)
Elissa Johnson (first respondent)
Christine Dibbin (second respondent)
Civil and Administrative Tribunal of New South Wales (third respondent)
Attorney General for the Commonwealth (intervener)

Representation:

M G Sexton SC with K Richardson SC and M Pulsford (Attorney General for New South Wales)
S Donaghue QC with C Lenehan and T Epstein (Attorney General for the Commonwealth)
G Kennett SC with C Winnett (contradictors)

  Solicitors:
Crown Solicitor’s Office (Attorney General for New South Wales)
Australian Government Solicitor (Attorney General for the Commonwealth)
Ting Lim (contradictors)

File Number(s):

2018/66655; 2018/66660; 2018/71811; 2018/71862

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Internal Appeal

Citation:

[2018] NSWCATAP 45

Date of Decision:

14 February 2018

Before:

Wright J; Boland ADCJ; Senior Member Renwick

File Number(s):

AP15/66120; AP15/67274

HEADNOTE

[This headnote is not to be read as part of the judgment]

Pursuant to s 77(iii) of the Constitution, s 39(2) of the Judiciary Act 1903 (Cth) invested the “Courts of the States” with federal jurisdiction in “all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it”, subject to certain exceptions and conditions, but including jurisdiction in “all matters … between residents of different States” under s 75(iv) of the Constitution.

In 2015, two separate proceedings under the Residential Tenancies Act 2010 (NSW) (the RT Act) were commenced “between residents of different States” in the Civil and Administrative Tribunal of New South Wales. One proceeding involved an application to the Tribunal for an order terminating a residential tenancy agreement under s 87 of the RT Act. The other proceeding involved two applications to the Tribunal for orders for various forms of compensation. After both proceedings were determined by the Tribunal, the unsuccessful party in each proceeding appealed to the Appeal Panel of the Tribunal.

Prior to the hearing of the appeals, the Appeal Panel raised questions about the jurisdiction of the Tribunal to determine proceedings “between residents of different States”. The hearing of both appeals was then stood over pending the decision of the Court of Appeal in Burns v Corbett [2017] NSWCA 3. Upon the assumption that the Tribunal was not a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution, the Court held that the Tribunal did not have jurisdiction to determine matters “between residents of different States”. The High Court of Australia later affirmed this decision in Burns v Corbett [2018] HCA 15, albeit on different grounds.

Following the decision of the Court of Appeal, the Appeal Panel of the Tribunal directed that a separate hearing be held on two questions relating to the jurisdiction of the Tribunal to determine matters “between residents of different States”. The first question was whether the Tribunal had been exercising judicial power in making the orders sought under the RT Act. The second question was, if the Tribunal were exercising judicial power in making the orders sought under the RT Act, whether the Tribunal was a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution, which had been assumed, but not decided, in Burns v Corbett [2017] NSWCA 3.

The Attorney General for New South Wales was joined as a party to the proceedings before the Appeal Panel. In relation to the first question, the Attorney General submitted that the Tribunal was exercising judicial power in making the orders sought under the RT Act, and that it therefore had jurisdiction to determine the proceedings. In relation to the second question, the Attorney General submitted that the Tribunal did not have jurisdiction to determine the proceedings because it was not a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution.

In relation to the first question, the Appeal Panel determined that the making of the orders sought under the RT Act was an exercise of judicial power. In relation to the second question, the Appeal Panel determined that the Tribunal was a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. The Attorney General then sought leave to appeal from this determination in the New South Wales Court of Appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

The issues on the appeal were:

1 Whether the Court had jurisdiction under s 83(1) of the NCAT Act to determine the appeal;

2 Whether the Tribunal was exercising judicial power in making an order under s 87 of the RT Act terminating a residential tenancy agreement; and

3 Whether the Tribunal is a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution.

Whether the Court had jurisdiction under s 83(1) of the NCAT Act

(i) Section 83(1) permits a party to a proceeding before the Appeal Panel to appeal on a question of law against “any decision” made in the proceedings. The phrase “any decision” is broad enough to encompass the answers given by the Appeal Panel to the questions identified for separate determination, regardless of whether that determination gave rise to a directly enforceable legal obligation: [96] (Bathurst CJ); [197] (Beazley P); [198] (McColl JA); [208] (Basten JA); [280]-[289] (Leeming JA).

Whether the Tribunal was exercising judicial power

(ii) The Tribunal was exercising judicial power in making an order under s 87 of the RT Act terminating a residential tenancy agreement because the discretion exercised by the Tribunal to make an order under the section was analogous to that exercised by courts under the general law, since the section required the Tribunal to identify whether the contract constituting such an agreement existed, whether the contract was breached, and whether the breach was sufficient to justify termination. Further, such a termination order was enforceable by the Tribunal: [125]-[137] (Bathurst CJ); [197] (Beazley P); [198]-[200] (McColl JA); [279] (Leeming JA).

Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2, Dattilo v Commonwealth (2017) 249 FCR 347; [2017] FCAFC 17; Odzic v Commonwealth [2017] FCAFC 28, considered.

Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25; [1943] HCA 13; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1971) 123 CLR 361; [1970] HCA 8; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10; Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28; Sue v Hill (1999) 199 CLR 462; [1999] HCA 30, referred to.

(iii) The Tribunal was not exercising judicial power in making an order under s 87 of the RT Act terminating a residential tenancy agreement because there was no “matter” before it for the purpose of s 75(iv) of the Constitution. Where State legislation does not confer jurisdiction on a court of a State to determine a proceeding, there will be no “matter” arising under that legislation. Since no right, duty or liability established by the RT Act was enforceable by a court until the Tribunal had determined an application under s 87, there was no “matter” before the Tribunal for the purpose of s 75(iv) of the Constitution: [229]-[248] (Basten JA).

South Australia v Victoria (1911) 12 CLR 667; [1911] HCA 17; In re Judiciary Act 1903-1920 and In re Navigation Act 1912-1920 (1921) 29 CLR 257; [1921] HCA 20; Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14, considered.

R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617; [1981] HCA 51; Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47; Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198; (1988) 82 ALR 175, referred to.

Whether the Tribunal was a “court of a State”

(iv) Although the Tribunal had many of the features of a “court” and exercises the judicial power of the State in some cases, the Tribunal was not a “court of a State” within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. The Tribunal was not designated a “court of record” and was expressly distinguished from a “court of law”. Further, most members of the Tribunal did not have the tenure and protection comparable to that held by judges under the Act of Settlement 1701 (UK) and its equivalents, and lacked the necessary institutional independence and impartiality which were required for a body to be described as a “court of a State”: [184]-[192] (Bathurst CJ); [197] (Beazley P); [198], [201]-[205] (McColl JA); [223]-[228] (Basten JA); [279] (Leeming JA).

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44; Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185; Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85; [2008] FCAFC 104; Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266; Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253, considered.

Commonwealth v Hospital Contribution Fund of Australia (1981) 150 CLR 49; [1982] HCA 13; Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, referred to.

(v) The insertion of Part 3A into the NCAT Act by the Justice Legislation Amendment Act (No 2) 2017 (NSW) was a clear legislative statement that the Tribunal was not a “court of a State” for the purpose of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. The premise of Part 3A was that the Tribunal lacked jurisdiction to determine matters “between residents of different States” under s 75(iv) of the Constitution: [197] (Beazley P); [205] (McColl JA); [292]-[304] (Leeming JA).

Judgment

1. BATHURST CJ: These proceedings have been brought to challenge the determination of an Appeal Panel of the Civil and Administrative Tribunal of New South Wales (the Tribunal) that the Tribunal was exercising the judicial power of the Commonwealth in determining two separate proceedings brought in the Tribunal pursuant to the provisions of the Residential Tenancies Act 2010 (NSW) (the RT Act) and that it was empowered to exercise that judicial power because it was a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

The proceedings before the Tribunal

(a)   Gatsby v Gatsby (RT 15/56639)

2. In 2015, Ms Deva Gatsby was residing in premises at Terranora, just south of the border between New South Wales and Queensland. The premises were owned by her mother, Ms Berri Gatsby, a resident of Queensland.

3. In May 2015, Ms Berri Gatsby sent a notification of termination of a residential tenancy agreement to Ms Deva Gatsby and then lodged an application in the Tribunal pursuant to s 87(4) of the RT Act seeking a termination order for non-payment of rent and an order for possession.

4. Mr Priestley, the member of the Tribunal who heard the proceeding, delivered his decision on 30 November 2015. He stated that there were two major issues: first, whether there was a residential tenancy agreement and, if so, what were its terms; and second, if Ms Berri Gatsby established the ground of non-payment of rent for termination, “whether the Tribunal can be satisfied the ground is, in the circumstances of the case, sufficient to justify termination” as required by s 87(4) of the RT Act.

5. Member Priestley considered that the evidence of the arrangements between the parties constituted a residential tenancy agreement for the purpose of s 13 of the RT Act and that the rent for the premises which the agreement required Ms Deva Gatsby to pay comprised the council and water rates and maintenance costs for the premises. Member Priestley noted that there were significant arrears of council and water rates.

6. Member Priestley stated that, having regard to the matters set out in s 87 of the RT Act, he had taken into account the “unfortunate history of the relationship between the parties and its continued deterioration”. He stated that Ms Deva Gatsby had breached the agreement by failing to pay the rates, that the termination notice was given in accordance with s 87 and complied with s 82 and s 88 of the RT Act, and that Ms Berri Gatsby was therefore entitled to order she sought.

7. The Tribunal made the following orders:

“1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the RT Act as the tenant has breached the agreement.

2.   The Residential Tenancy Agreement is terminated immediately and the possession is to be given to the landlord on the date of termination.

3.   The order for possession is suspended until 29 February 2016.”

8. In the remainder of this judgment, I will refer to this proceeding in the Tribunal as the “Gatsby v Gatsby proceeding”.

(b)   Dibbin v Johnson (RT 15/41349); Johnson v Dibbin (RT 15/44353)

9. On 13 December 2014, Ms Elissa Johnson, as tenant, and Ms Christine Dibbin, as landlord, entered into a six-month residential tenancy agreement for premises just south of Tweed Heads in New South Wales. Ms Johnson was a resident of New South Wales and Ms Dibbin was a resident of Queensland.

10. On 15 June 2015, Ms Johnson vacated the premises in response to a termination notice served by Ms Dibbin. On 25 June 2015, Ms Dibbin applied for an order under s 175 of the RT Act that the rental bond be paid to her, together with compensation for the cost of cleaning and repair of damage to the premises in excess of the rental bond. The Tribunal was empowered to make such an order under s 187(1)(d) of the RT Act on an application under s 190 of that Act.

11. On 15 July 2015, in separate proceedings, Ms Johnson applied for repayment of rent under s 45 of the RT Act because the premises were alleged to be uninhabitable due to “serious mould”, together with an order under s 187(1)(d) of the RT Act for compensation and a full bond refund under s 175 of that Act.

12. The Tribunal made the following orders on 19 November 2015:

“1.   The tenant’s application is dismissed.

2.   The tenant is to pay the landlord the sum of $4,400.00 immediately.

3.   The rental bond board is to pay to the landlord the whole bond moneys on bond number [REDACTED]. Any amount received is to be credited against the money order.”

The effect of these orders was that any money received from the payment of the bond in order 3 was to be set off against the compensation awarded in order 2.

13. In the remainder of this judgment, I will refer to both of these proceedings in the Tribunal collectively as the “Dibbin v Johnson proceedings”.

Subsequent proceedings in the Tribunal

14. The unsuccessful parties in each matter appealed from the orders made. Since what was described as a “jurisdictional issue” arose in each case, the application was referred to an Appeal Panel comprising the President of the Tribunal, a Deputy President and a Senior Member. On 18 July 2017, the Appeal Panel ordered that, in each case, separate questions relating to its jurisdiction be determined. The questions in relation to the Gatsby v Gatsby proceeding were as follows:

“Did the Tribunal at first instance have authority to hear and determine the application under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639:

(a)   because in doing so it was exercising administrative and not judicial power?

(b) if the answer to question (a) is ‘no’, because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?”

Orders for the determination of similar separate questions were made in relation to the Dibbin v Johnson proceedings.

15. It should be noted that, by the time those orders were made, this Court had determined that a State tribunal which is not a “court of a State” is unable to exercise judicial power to determine matters between residents of different States: Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3. The High Court later affirmed this decision, albeit on different grounds: Burns v Corbett [2018] HCA 15. In that case, the proceedings both in this Court and in the High Court proceeded on the assumption that the Tribunal was not a “court of a State” and that the power that it purported to be exercising was judicial power.

16. The Appeal Panel held that, in determining each of the Gatsby v Gatsby and Dibbin v Johnson proceedings, the Tribunal was exercising judicial power and was a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth). The Tribunal accordingly answered the first question “No” and the second question “Yes”.

17. The Attorney General of New South Wales, who had been joined as a party in each proceeding before the Appeal Panel, has alternatively sought both leave to appeal from and judicial review of the decision of the Appeal Panel in each proceeding. In the Gatsby v Gatsby proceeding, he contended that the Tribunal was not exercising judicial power and that the Tribunal was not a “court of a State”. In the Dibbin v Johnson proceedings, he accepted that the Tribunal was exercising judicial power and only relied on the contention that the Tribunal was not a “court of a State”.

18. The Attorney General for the Commonwealth, who intervened in the proceedings in this Court, contended that the Tribunal was exercising judicial power in both cases and that it was not a “court of a State”. The contradictors appointed by the Court, Mr Kennett SC and Ms Winnett, who provided great assistance at the hearing of these proceedings, contended that the Appeal Panel had answered both questions correctly.

The relevant legislation

19. To understand the decision of the Appeal Panel and the submissions of the parties, it is necessary to set out the relevant legislation.

(a)   The NCAT Act

20. Section 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out its objects. It provides as follows:

“The objects of this Act are:

(a)   to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

(b)   to enable the Tribunal:

(i)   to make decisions as the primary decision-maker in relation to certain matters, and

(ii)   to review decisions made by certain persons and bodies, and

(iii)   to determine appeals against decisions made by certain persons and bodies, and

(iv)   to exercise such other functions as are conferred or imposed on it, and

(c)   to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

(d)   to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e)   to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f)   to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g)   to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.”

21. Part 2 of the NCAT Act deals with the establishment of the Tribunal. Section 9(1) provides the following:

“(1)   The Tribunal is to consist of the following members:

(a)   the President,

(b)   Deputy Presidents,

(c)   principal members,

(d)   senior members,

(e)   general members.”

22. Members can either be appointed as term members, that is, members for a term (s 9(4)) or occasional members, that is, members appointed for the purpose of specified proceedings (s 9(5)). The President is required to be appointed as a term member (s 9(6)). A person is qualified to be appointed as President only if the person is a judge of the Supreme Court (s 13(1)).

23. Presidential members appointed for a term are required to be appointed by the Governor under the public seal of the State (s 10(2)). Other than the President, such members are required to be lawyers of at least seven years’ standing or a person who holds or has held judicial office (s 13(3)).

24. Non-presidential members appointed for a term are to be appointed by the Minister. Principal members and senior members are required to be Australian lawyers of at least seven years’ standing or, in the opinion of the appointer, have “special knowledge, skill or expertise” in relation to one or more classes of matters in respect of which the Tribunal has jurisdiction (s 13(4), s 13(5)).

25. General members are qualified to be appointed if, in the opinion of the appointer, they have “special knowledge, skill or expertise” in respect of any class of matters in which the Tribunal has jurisdiction, or if they are “capable of representing the public (or a sector of the public), or a particular organisation, body or group of persons (or class of organisations, bodies or groups of persons), in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction” (s 13(6)).

26. Section 10(4) provides that the instrument of appointment of members must specify the term for which the members are appointed.

27. Section 16 of the NCAT Act provides for Divisions of the Tribunal. Of relevance to the present proceedings is the Consumer and Commercial Division, to which claims under the RT Act are assigned by cl 3(1) of Schedule 4 to the NCAT Act. Section 14 provides for the appointment of presidential members as Division Heads of one or more Divisions of the Tribunal.

28. Section 24 provides for the establishment of a Rule Committee comprising the President, each Division Head, and such other members as may be appointed by the President. Section 25 empowers the Rule Committee to make rules as to the “practice and procedure” of the Tribunal.

29. Section 27 provides for the constitution of the Tribunal in certain matters. It provides that, in an internal appeal, the Tribunal is to be constituted by an Appeal Panel of the Tribunal consisting of one member who is an Australian lawyer, or two or more members, at least one of which must be an Australian lawyer (s 27(1)(a)).

30. If the proceedings are for contempt of the Tribunal, it is required to be constituted by one or more of the President or any other member who is a current or former judicial officer (s 27(1)(b)). In cases for the contravention of a civil penalty provision of the NCAT Act, the Tribunal is required to be constituted by one or more of the President, a Deputy President or a principal member who is an Australian lawyer of seven years’ standing (s 27(1)(c)).

31. Clause 2 of Schedule 2 provides that a term member holds office for a period specified in their instrument of appointment, but not exceeding five years. It also provides that term members are eligible for reappointment.

32. Clause 7(2) of Schedule 2 provides that the Governor may remove a member other than the President from office for “incapacity, incompetence or misbehaviour”.

33. Clause 13 of Schedule 2 provides that the regulations may make provision “for or with respect to … the disclosure by members of interests (whether pecuniary or otherwise) that could conflict with the proper performance of the functions of a member in proceedings” and “the participation of members in proceedings in which there may be a conflict of interest”.

34. Sections 28 and 29 provide for the jurisdiction of the Tribunal. These sections provide as follows:

“28   Jurisdiction of Tribunal generally

(1)   The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2)    In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction:

(a)   the general jurisdiction of the Tribunal,

(b)   the administrative review jurisdiction of the Tribunal,

(c)   the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

(d)   the enforcement jurisdiction of the Tribunal.

(3)   Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.

29    General jurisdiction

(1)    The Tribunal has general jurisdiction over a matter if:

(a)   legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b)   the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

(2)    The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction:

(a)    the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)    the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3)    A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

(4)    A general application is an application made to the Tribunal for a general decision.

(5)    Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.”

35. Sections 31 and 32 deal with what are described as the external appeal and internal appeal jurisdictions of the Tribunal. It is unnecessary to set out the provisions, but the external appeal jurisdiction relates to an appeal against a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction (s 31(1)). The internal appeal jurisdiction relates to an appeal against any decision made by the Tribunal in proceedings for a general decision or an administrative review decision (s 32(1)). Section 33 deals with the enforcement jurisdiction of the Tribunal, which relates to proceedings for contempt and civil penalties.

36. Part 4 of the NCAT Act deals with the practice and procedure of the Tribunal. Section 36(1) states that the guiding principle for the NCAT Act and the procedural rules is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Section 37 empowers the Tribunal to use or require the parties to use “any one or more resolution processes”.

37. Section 38 deals with the procedure of the Tribunal generally. Of particular relevance are s 38(2), s 38(3) and s 38(4), which provide as follows:

“(2)    The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)    Despite subsection (2):

(a)   the Tribunal must observe the rules of evidence in:

(i)   proceedings in exercise of its enforcement jurisdiction, and

(ii)   proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

(4)   The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

38. Division 4 of Part 4 of the NCAT Act deals with the conduct of proceedings. Section 49(1) provides that proceedings are to be “open to the public unless the Tribunal orders otherwise”. Section 54 deals with references of questions of law to the Supreme Court. Sections 54(1) and 54(4) provide as follows:

“54   References of questions of law to Supreme Court

(1)   The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.

…

(4)   If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not:

(a)   to give a decision in the proceedings to which the question is relevant while the reference is pending, or

(b)   to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.”

39. Section 62(2) requires the Tribunal to give reasons for its decisions on the request of a party, while s 63 confers power to correct obvious errors in the text of a notice of a decision or in the written statement of reasons for a decision.

40. Part 5 of the NCAT Act deals with enforcement. Section 72(3) provides that contravention of any order of the Tribunal incurs a civil penalty.

41. Section 73 confers power on the Tribunal to punish for contempt. As far as relevant, it provides as follows:

“(1)   The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

(2)    A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.”

42. Section 78 deals with civil enforcement, it provides as follows.

“(1)    Recovery of non-penalty amounts

For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar.

(2)    A certificate given under this section must identify the person liable to pay the certified amount.

(3)    A certificate of a registrar that:

(a)    is given under subsection (1), and

(b)    is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,

operates as such a judgment.

(4)    Recovery of civil or other penalty amounts

A civil or other penalty ordered to be paid by the Tribunal (other than for a contravention of a civil penalty provision of this Act) may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.”

43. Part 6 of the NCAT Act deals with appeals. In the case of internal appeals, s 80(2) provides that, in the case of a decision other than an interlocutory decision, an appeal lies to the Appeal Panel “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds”.

44. Division 3 of Part 6 relevantly provides for appeals from decisions of the Appeal Panel to either the Supreme Court or the District Court. Section 83, so far as relevant, provides as follows.

“(1)   A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

…

(3)   The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:

(a)   an order affirming, varying or setting aside the decision of the Tribunal,

(b)   an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.”

(b)   The RT Act

45. The RT Act confers certain rights and imposes certain obligations on persons who are parties to “residential tenancy agreements” as defined in that Act. For example, s 33 requires a tenant to pay the rent under a residential tenancy agreement before the date set out in the agreement. However, the landlord is obliged by s 34 to accept payment of unpaid rent if the landlord has given a termination notice on that ground and the tenant has not yet vacated the premises.

46. Further examples of the nature of the obligations under the RT Act are s 50, which confers the right to quiet enjoyment on the tenant, and s 51, which imposes certain restrictions on the use of the premises by the tenant. Section 51(2) obliges the tenant to keep the residential premises in a “reasonable state of cleanliness”, while s 51(3) requires that, on giving back possession, the premises are to be left “as nearly as possible in the same condition, fair wear and tear excepted”, as set out in the condition report applicable to the premises at the time that the parties entered into the agreement. It is unnecessary to deal with the other obligations imposed on both the landlord and tenant by the RT Act in any more detail.

47. Part 5 of the RT Act deals with termination of residential tenancy agreements. Section 81(1) provides that a residential tenancy agreement “terminates only in the circumstances set out” in the Act. Section 81(2) provides that a residential tenancy agreement terminates if either the landlord or the tenant gives a termination notice and the tenant gives vacant possession. Section 81(3) provides that a residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under the Act. Section 82 sets out the requirements for a valid termination notice.

48. Section 83 provides that, if the Tribunal makes an order terminating a residential tenancy agreement, it must also make an order for possession of the premises concerned.

49. Section 84(1) provides that a landlord, at any time before the end of a fixed term agreement, may give a termination notice to take effect on or after the end of the fixed term. Section 84(3) provides that the Tribunal, on application by the landlord, must make a termination order if satisfied that the notice was given in accordance with the section and the tenant has not vacated as required by the Act. Section 85 makes similar provision in relation to the termination of periodic agreements.

50. Section 87 deals with termination for breach of a residential tenancy agreement. It is in the following terms.

“(1)   A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.

(2)    The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.

(3)    The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.

(4)    The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:

(a)    the tenant has breached the residential tenancy agreement, and

(b)    the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and

(c)    the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(5)    In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:

(a)    the nature of the breach,

(b)    any previous breaches,

(c)    any steps taken by the tenant to remedy the breach,

(d)    any steps taken by the landlord about the breach,

(e)    the previous history of the tenancy.

(6)   The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.”

51. Section 113 empowers the Tribunal to make a termination order notwithstanding a defect in the termination notice.

52. Section 120 prohibits a person from entering residential premises for the purpose of taking possession before or after the end of a residential tenancy agreement, unless they are acting “in accordance with a warrant arising out of an order for possession of the Tribunal”, or in circumstances where “the tenant has abandoned the premises or given vacant possession of the premises”.

53. Section 121 provides that the principal registrar of the Tribunal may, “on the application of a person in whose favour an order for possession was made, issue a warrant for possession” authorising a sheriff’s officer to “enter specified residential premises and give possession to the person specified in the warrant”.

54. Section 187 confers general powers on the Tribunal. It is in the following terms:

“187   Orders that may be made by Tribunal

(1)   The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:

(a)   an order that restrains any action in breach of a residential tenancy agreement,

(b)   an order that requires an action in performance of a residential tenancy agreement,

(c)   an order for the payment of an amount of money,

(d)   an order as to compensation,

(e)   an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(f)   an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(g)   an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,

(h)   an order directing a landlord, landlord’s agent or tenant to comply with a requirement of this Act or the regulations,

(i)   a termination order or an order for the possession of premises,

(j)   an order directing a landlord or landlord’s agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.

(2)   Without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for the following:

(a)   loss of rent,

(b)   any other breach of a residential tenancy agreement,

(c)   loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.

(3)   An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(4)   The Tribunal must not make an order for:

(a)   the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b)   the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.”

The Appeal Panel’s determination

55. The Appeal Panel stated at [47] that it had concluded that, when dealing with matters under the RT Act, it was exercising judicial power on “two independent but related bases”:

The first is that, having regard to the principles concerning judicial power, the general nature of the Tribunal and the functions performed by the Tribunal under the RT Act, the Tribunal is exercising judicial power. The second relies on authority which establishes that when powers under the RT Act are exercised by a body that is a court, that body is exercising judicial power.

56. The Appeal Panel dealt extensively with the authorities concerning the question of what constitutes the exercise of judicial power. It referred at [65] to the objects stated in s 3 of the NCAT Act and stated at [66] that to be “an independent civil decision making body whose decisions are required to be just, as well as quick, cheap, timely, fair, consistent and of high quality and whose processes are to be open and transparent and constrained by as little formality as possible can be seen as the proper aims of every court exercising civil jurisdiction”. The Appeal Panel stated that the objects did not “in any way suggest that the Parliament intended the Tribunal to be an emanation of the executive arm of government or some other form of non-judicial body”.

57. The Appeal Panel stated at [68] that the other provisions of the NCAT Act were “consistent with, and promote, the objects in s 3” and that nothing in the NCAT Act was “incompatible with the essential character of a court as an institution that is, and is seen to be, both impartial between the parties and independent of the parties and of other branches of government”. In that context, they referred to the various provisions of the NCAT Act which I have set out at [20]-[44] above. The Appeal Panel stated at [70] that those provisions were “consistent with the Tribunal’s processes being judicial in nature”.

58. The Appeal Panel then dealt with the various matters referred to by the Attorney General for New South Wales said to be contrary to the conclusion that the Tribunal was exercising judicial power in the Gatsby v Gatsby proceeding. It noted that the Attorney General conceded that “monetary orders of the Tribunal are made enforceable as judgment debts by registration in the registry of an appropriate court” under s 78 of the NCAT Act. However, it rejected the Attorney General’s submission that non-monetary orders under the RT Act did not have the “necessary character of enforceability”. In that context, it referred to the fact that a contravention of an order of the Tribunal creates a liability to a civil penalty and that non-compliance can amount to contempt of the Tribunal and be punished accordingly. More importantly, the Appeal Panel noted that orders for possession under the RT Act can be enforced through the issue of a warrant for possession by the principal registrar of the Tribunal under s 121 of the RT Act.

59. The Appeal Panel also rejected the contention that the obligation in s 38(4) of the NCAT Act, which requires the Tribunal to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” meant that the Tribunal was not required to act strictly according to law. It pointed to a number of decisions of this Court which it said held that such provisions “do not require or permit a court or tribunal to decide otherwise than according to law, whether statute or common law, especially where the decision is appealable on a question of law”.

60. The Appeal Panel also accepted that “not being bound by the rules of evidence is often, if not invariably, a characteristic of administrative decision-making bodies”. However, it also pointed out that often courts are not bound by the rules of evidence, whether generally or in relation to particular functions. It referred to the decision of the High Court in Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 at [42] (Sue v Hill).

61. The Appeal Panel then stated at [98] that “the nature of the body in question, its processes and functions, will usually be a more certain indicator of whether it is an administrative or judicial body”. It said that, “even though the Tribunal is not generally bound by the rules of evidence, its processes and procedures and the nature of its predominant functions point to the conclusion that the Tribunal is exercising judicial power when it deals with matters in its general jurisdiction, including matters under the RT Act”. The Appeal Panel stated that this view was reinforced by the express requirement in s 38(2) of the NCAT Act to “comply with the rules of natural justice even when not bound by the rules of evidence”.

62. The Appeal Panel next referred to the lack of a right to legal representation. It said at [101] that there was no authority supporting the contention that s 45(1) of the NCAT Act, which provides that a party “may be represented by another person only if the Tribunal grants leave”, points to the conclusion that the Tribunal does not exercise judicial power. It also pointed out at [102] that, “in virtually all proceedings in the Administrative and Equal Opportunity Division and in all proceedings in the Occupational Division, parties are entitled to legal representation and leave is not required”. It said at [104] that s 45 could be seen to be “consistent with acting judicially but proportionately”, and that, when exercising its discretion to grant leave, the Tribunal was “required to act judicially and exercise the discretion having regard to the relevant circumstances of each case”.

63. The Appeal Panel accepted that matters arising under the RT Act could be heard by a member who is not legally qualified, although it pointed out that, in the Gatsby v Gatsby and Dibbin v Johnson proceedings, the members who heard the claims were in fact legally qualified. It stated at [109] that, in any event, members of the Tribunal dealing with matters arising under the RT Act, like all other members, were required to decide matters in accordance with the law. It noted that, in Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 (Owen v Menzies), the Queensland Court of Appeal rejected a submission that the Queensland Civil and Administrative Tribunal was not a court because persons not qualified as lawyers could hear matters. The Appeal Panel referred specifically to a statement by the Court of Appeal at [50] which noted that, prior to the time of Federation, “Magistrates Courts were commonly constituted by justices of the peace who for the most part were not legally qualified”.

64. The Appeal Panel then turned to the provisions of the RT Act which I have summarised at [45]-[54] above and certain other provisions which are relevant only to the Dibbin v Johnson proceedings.

65. The Appeal Panel noted the Attorney General’s submission that, in making a termination order under s 87 of the RT Act, the Tribunal “was not called upon to determine the existence of legal rights and obligations” because even if it was satisfied of matters in ss 87(4)(a)-(c), the Tribunal still retained a discretion about whether to make an order. However, the Appeal Panel took the view that the question of whether the Tribunal was satisfied that the tenant had breached a residential tenancy agreement did involve the legal rights and obligations of the parties and did have legal effects or consequences.

66. The Appeal Panel stated at [135] that the state of satisfaction required under s 87(4) must be based on “conclusions of fact and law such as: there was a residential tenancy agreement; under that agreement the tenant was obliged to do or not do something; and, the tenant breached the agreement by failing to comply with the obligation”. In those circumstances, the Appeal Panel did not accept that the terms of s 87 of the RT Act meant the Tribunal was not exercising judicial power when making a termination order.

67. Therefore, the Appeal Panel said at [164] that the fact that the Tribunal was required to exercise the discretion in s 87(4) when determining the Gatsby v Gatsby proceeding did not have the consequence that the power being exercised was not judicial power. It said at [166] that the “effect of the Tribunal’s decision was that Ms Deva Gatsby’s existing right of occupation of the premises, with the concomitant obligation to pay rent, was terminated” and a “new right to obtain possession of the property was created in Ms Berri Gatsby’s favour”. The Appeal Panel concluded that, in that way, the Tribunal’s function in the Gatsby v Gatsby proceeding involved “making a decision settling for the future … a question as to the existence of rights or obligations so that the exercise of the power created a new charter by reference to which that question is in the future to be decided”.

68. In support of its conclusion that the Tribunal was exercising judicial power, the Appeal Panel noted at [176] that proceedings under the RT Act are closely analogous to “actions for breach of contract or for civil wrongs”. The Appeal Panel also stated that its conclusion was consistent with the conclusion reached by the Full Court of the Federal Court of Australia in Dattilo v Commonwealth (2017) 249 FCR 347; [2017] FCAFC 17 (Dattilo) and Rigney v Commonwealth [2017] FCAFC 18 (Rigney).

69. The Appeal Panel recognised that it was relevant to the reasoning in Dattilo and Rigney that the powers at issue in those cases had been conferred on a court. Therefore, the Appeal Panel said that it was required to consider whether the Tribunal was a “court”.

70. The Appeal Panel said at [191] that this issue turned principally on the Tribunal’s powers in relation to contempt and the power to impose a fine. In relation to the latter question, it referred at [195] to a number of statutes which conferred on it powers to impose monetary penalties. The Appeal Panel stated at [197] that it was a “long established principle that a new jurisdiction erected with power to fine or imprison is a court of record”. It stated at [201] that the creation of the Tribunal with “the nature, processes and functions established by the NCAT Act, means that the Tribunal is a new judicial decision-making body … erected with the power to punish for contempt in the face of the Tribunal and to imprison and fine”. It said that, in light of the principles to which it had referred, it would be “proper to conclude that the Tribunal is a court of record”.

56. In those circumstances, the Appeal Panel concluded at [203] that, in exercising the powers under the RT Act in the Gatsby v Gatsby proceeding, the Tribunal was exercising judicial power.

57. In relation to the second question for determination, namely whether the Tribunal was a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth), the Appeal Panel noted at [205] that no party had submitted that there was authority binding on it that required it to hold that the Tribunal was not a “court of a State”.

58. Dealing with that question, the Appeal Panel compared the nature and functions of the Tribunal to those of one of its predecessors, the Administrative Decisions Tribunal. The Appeal Panel pointed out at [210] that administrative review matters under the Administrative Decisions Review Act 1997 (NSW) account for “only a very small percentage” of the Tribunal’s caseload. The Appeal Panel then set out at [211] the matters heard by the Tribunal which it said involved the exercise of judicial power and which were not dealt with by the former Administrative Decisions Tribunal, including residential and agricultural tenancy matters, consumer claims, home building and motor vehicle matters. The Tribunal also stated at [215] that, if matters under the Guardianship Act 1987 (NSW) were included, then the “overwhelming majority of all proceedings” in the Tribunal involved the exercise of judicial power.

59. In those circumstances, the Appeal Panel stated that it could not be assumed that the reasoning of this Court in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185 (Skiwing) concerning the Administrative Decisions Tribunal would be directly applicable to the Tribunal in the present case.

60. The Appeal Panel also stated that there was a further difference between the Administrative Decisions Tribunal and the Tribunal in the present case in that the Tribunal could be seen to be a “court of record”, whereas the Administrative Decisions Tribunal was not.

61. The Appeal Panel then addressed the Attorney General’s submission that the “independence and impartiality” of a body is relevant to determining whether that body is a “court of a State”. The Appeal Panel stated at [227] that “independence and impartiality mark a court apart from other decision-making bodies”, but that they did not “constitute an exhaustive list of the defining characteristics of courts in this context”. It stated at [232] that “central” to the concept of decisional independence, although not exhaustive of it, was “independence from influences external to the proceedings in question, including, but not limited to, the influence of the executive government and its authorities”. It stated at [236] that, in those circumstances, it was necessary to “consider in combination all the arrangements and safeguards that apply to [the Tribunal] and its members, both institutional and personal”.

62. In that regard, the Appeal Panel referred to the objects of the NCAT Act and, in particular, that the Tribunal was intended to be an “‘independent’, principally ‘civil’, ‘primary–decision’ making body that is to resolve issues ‘justly’ with ‘processes that are open and transparent’”. It referred again generally at [238] to the provisions of the NCAT Act which it said required the Tribunal to “act judicially, using judicial processes and procedures”. It said at [239] that the “institutional and decisional independence and impartiality of the Tribunal are enhanced and enforced by the availability and application of the Supreme Court’s judicial review and appellate jurisdiction”.

63. The Appeal Panel stated at [240] that there was no provision of the NCAT Act which would absolve any member from “the requirement in all cases to decide matters independently and impartially”. It said at [242] that the “rights of appeal and judicial review are rendered effective and meaningful by the requirement that the Tribunal give reasons for its decisions”.

64. The Appeal Panel also stated at [243] that “personal independence and impartiality” is achieved by a number of provisions in the NCAT Act which protect members in the performance of their duties from interference. It referred to the fact that members are “statutory officer holders appointed by the Governor or the Minister”, that, in the exercise of their functions, they have “the same protection and immunities as a Judge of the Supreme Court”, that they have “the protections afforded by the law relating to contempt in the face of the Tribunal”, that a member’s remuneration may not be reduced during a member’s term of office, and that members are protected from “arbitrary removal”.

65. The Appeal Panel stated at [246] that, when all the arrangements and safeguards to which they referred were considered together, as well as the general provisions concerning the Tribunal’s nature, functions and processes, “it can legitimately be concluded that the Tribunal has the necessary independence and impartiality to make it an appropriate repository for federal jurisdiction and a ‘court of a State’” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

66. The Appeal Panel rejected the submission that the fact that members other than the President could be removed by the Governor for “incapacity, incompetence or misbehaviour” was inconsistent with it being a “court of a State”. It said at [248] that cl 7(2) of Schedule 2 to the NCAT Act was a legislative provision that specified three grounds on which the Governor may remove a Tribunal member. It said that, in light of the object in s 3(a) of the NCAT Act of establishing an “independent tribunal” as well as the NCAT Act as a whole, cl 7(2) should be construed as precluding the removal of members on any ground other than the three grounds specified. It stated that, in those circumstances, removal “merely because the executive desires it” is precluded.

67. The Appeal Panel also stated at [249] that, to the extent that it was submitted that “only removal ‘by the Governor on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity’” was necessary to ensure the necessary independence and impartiality, that submission appeared to be inconsistent with what the High Court of Australia said in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [83]-[85] (Forge). The Appeal Panel stated at [253] that, in addition, the protection against arbitrary removal provided by cl 7(2) is enhanced by the fact that the “improper exercise of that power of removal could be challenged in the Supreme Court for bad faith and improper purpose” and that “any improper exercise of the power may attract the operation of the Independent Commission Against Corruption Act 1988 (NSW).

68. The Appeal Panel also rejected the submission that the fact that members are appointed for a term of up to five years and are eligible for reappointment under cl 2 of Schedule 2 to the NCAT Act indicated that the Tribunal did not meet the requisite standard of independence. It stated at [258] that “‘Act of Settlement’ tenure for members is not necessary for a body to be a ‘court of a State’”, and referred to Forge at [36], [83]-[85] and North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [3], [5] (Bradley). The Appeal Panel also stated that the “chief characteristics of ‘Act of Settlement’ tenure are ‘appointment during good behaviour and protection from diminution in remuneration’”. The Appeal Panel said that Tribunal members enjoyed both of those characteristics.

69. The Appeal Panel also stated at [262] that, so far as it was aware, there was “no High Court authority to the effect that term appointments, with the potential for reappointment, always or even generally, lead to the perception of lack of independence so as to deprive a body of the requisite independence and render it ineligible to be a ‘court of a State’”. It noted that it had been held that, “for State legislatures establishing bodies that are ‘courts of a State’, there is room for legislative choice in relation to tenure”, including “the choice to have appointments for ‘fixed, renewable terms”. The Appeal Panel also said at [266] that its reasoning was supported by the judgment of de Jersey CJ in Owen v Menzies at [15(6)] and that of McMurdo P at [49].

70. So far as occasional Tribunal members are concerned, the Appeal Panel stated at [274] that the power to appoint them could be seen as “a means of involving appropriate professional and lay participation in the Tribunal’s decision-making without compromising the independence and impartiality of the Tribunal”. It stated that it was “analogous to the participation of juries in courts’ decision making processes”.

71. The Appeal Panel also noted at [288] that it was “expressly bound to apply the rules of natural justice” by s 38(2) of the NCAT Act and stated at [294] that the “open-court principle” found in the NCAT Act is another “essential aspect of the characteristics of courts that are a ‘court of a State’ or otherwise exercise federal jurisdiction”. It stated at [296] that s 49 “put beyond doubt that the Tribunal satisfies the characteristic that it adheres as a general rule to the open court principle”.

72. The Appeal Panel also noted that Tribunal members are “under a duty to give parties notice of every decision made and to provide a written statement of reasons for every decision, on request”, under s 62(2) of the NCAT Act.

73. For these reasons, the Appeal Panel concluded at [310] that the Tribunal should be held to be a “court of a State”.

74. The Appeal Panel also rejected the submission that, in order for federal jurisdiction to be permissibly conferred upon it, a “court of a State” must exclusively, or at least predominantely, be constituted by “judges” in substance, if not actually called “judges” or “magistrates”. It said at [320] that it did not find it “possible to derive definitive guidance” from what was said on this issue in Skiwing because, although Skiwing concluded that the Administrative Decisions Tribunal did not predominantly comprise “judges”, the judgment did not explain “the specific factors taken into account to reach that conclusion”. The Appeal Panel concluded at [321] that a “fair reading” of Skiwing in context requires that, when assessing whether a body predominantly comprises “judges in substance”, consideration must be given to whether “the decision-makers who compose that body have the required institutional and personal independence and impartiality” described in cases such as Bradley and Forge. The Appeal Panel concluded that “decision-makers who satisfy those requirements should be found to be ‘judges in substance’ for this purpose”, and that, if this was the relevant test to be applied, then members of the Tribunal would satisfy that test.

75. The Appeal Panel also concluded at [343] that, adopting what it described as the “balance sheet approach” to determining whether the Tribunal was a “court of a State” from Skiwing, it came to the same conclusion.

76. Finally, the Appeal Panel considered the decision of the Queensland Court of Appeal in Owen v Menzies and concluded that it was not inconsistent with what was said in Forge. The Tribunal stated at [353] that it was “bound to follow Owen v Menzies” unless it was distinguishable or plainly incorrect. It noted the bases on which the Court distinguished Skiwing and the bases on which de Jersey CJ rejected the contention that the Queensland Civil and Administrative Tribunal (QCAT) was not a “court of a State”: see Owen v Menzies at [10]-[19]; see also McMurdo P at [49], [52].

77. The Appeal Panel noted the differences between the NCAT Act and the Civil and Administrative Tribunal Act 2009 (Qld), and in particular, that the latter specifically designated QCAT as a “court of record”. However, the Appeal Panel stated at [360] that the Tribunal was a “court of record” by implication.

78. The Appeal Panel also stated at [361] that there was “much to recommend the general comments” of McMurdo P in Owen v Menzies concerning Chapter III of the Constitution and the role in “the integrated national court system of what have been called the State ‘super tribunals established in accordance with the model adopted’” for QCAT and the Tribunal.

79. For these reasons, the Appeal Panel concluded that the Tribunal was a “court of a State” for the purpose of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

A preliminary question on jurisdiction

95. A preliminary question arises as to the constitution of the proceedings. In each case, the Attorney General for New South Wales (the applicant) brought a summons seeking leave to appeal against the decision made by the Appeal Panel, relying on s 83(1) of the NCAT Act, as well as a summons seeking judicial review of the decision. Both the summons seeking leave to appeal and the summons seeking judicial review asserted errors of law in answering the questions which I have set out at [14] above. In the initial draft notices of appeal, the errors of law asserted by the applicant were that the Appeal Panel should have answered the first question “Yes” and had erred in concluding that it had power to answer the second question. Before the hearing of the present proceedings, the applicant accepted that, in relation to the Dibbin v Johnson proceedings, the Appeal Panel had answered the first question correctly.

96. I agree with the reasons expressed by Leeming JA on the issue of jurisdiction. As will be seen from my reasons below, I have concluded that the answer to each of the questions should be “No”. However, it seems to me unsatisfactory merely to answer these questions without any consequential relief. In those circumstances, it is appropriate to make declaratory orders to give effect to these reasons.

Question (a) – Was the Appeal Panel correct in concluding that the Tribunal was exercising judicial power in determining the Gatsby v Gatsby proceeding?

97. In one sense, it may have been more logical to deal with the second question first, as “there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body do not”: R v Davison (1954) 90 CLR 353 at 368; [1954] HCA 46; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267; [1995] HCA 10 (Brandy). Nonetheless, as I have come to the clear view that in the Gatsby v Gatsby proceeding, the Tribunal was exercising judicial power, it is convenient to deal with the questions in the order in which they were framed and in the order that they were dealt with by the Tribunal.

98. At the hearing,it was accepted by all parties that the Tribunal’s determination in the Dibbin v Johnson proceedings involved the exercise of judicial power. The question thus only arises in the Gatsby v Gatsby proceeding.

(a)   The submissions

a   The applicant

99. The applicant set out a number of matters which he described as the “applicable principles” in identifying an exercise of judicial power. They were relevantly uncontroversial, although they are frequently difficult to apply. As the applicant pointed out, “judicial power has proved to be insusceptible to comprehensive definition”: Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319; [1990] HCA 4.

100. The applicant submitted that “the exercise of judicial power involves the binding and authoritative quelling of contentions between parties”. He submitted that it has been observed that “an exercise of judicial power determines existing rights and duties according to law”, rather than by “the formulation of policy or the exercise of administrative discretion”. He noted that, “although some functions, such as the determination and punishment of criminal guilt are necessarily judicial”, other functions are “neither purely executive nor purely judicial”, quoting Paphos Providores Pty Ltd v Ladha (2015) 91 NSWLR 400; [2015] NSWCA 353 at [41]. He noted that “a function may be judicial or administrative in nature depending upon the manner of its exercise”, and, as I have already indicated at [97] above, that the “proper characterisation of a power as administrative or judicial may also be contingent, inter alia, on the ‘nature of the body dealing with it’”.

101. Senior counsel for the applicant emphasised that there were some powers in the RT Act which were administrative. In that context, she referred to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36, where she submitted that the High Court said that, in making orders that a landlord was entitled to enter leased premises and orders that the tenant provide a key to the landlord for that purpose, the Residential Tenancies Tribunal was exercising administrative power rather than judicial power: see at 448 (Dawson, Toohey and Gaudron JJ); at 460 (McHugh J); at 474 (Gummow J). That may be accepted, but the question remains whether the particular power exercised by the Tribunal in the present case was an exercise of judicial power.

102. Senior counsel for the applicant emphasised that there was no entitlement to legal representation before the Tribunal, that s 38(2) of the NCAT Act provided that the rules of evidence did not apply, and that the Tribunal was entitled to inform itself in any manner it thought fit and to act according to “equity, good conscience and the substantial merits of the case”. She also referred to the fact that the general obligation is to provide reasons on request.

103. Senior counsel for the applicant then referred to s 81 of the RT Act, which sets out the circumstances in which residential tenancy agreements may be terminated. She noted that the Tribunal was the only body entitled to terminate such an agreement. She referred to the requirements for a valid termination notice in s 82 and noted that s 84 and s 85 provide that the Tribunal “must” make a termination order in the circumstance stated in those sections, contrasting that with the use of the word “may” in s 87(4). She submitted that this emphasised that s 87(4) conferred a discretion: see Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [47]-[49]. She submitted that, in those circumstances, the decision of the Full Court of the Federal Court in Odzic v Commonwealth [2017] FCAFC 28 at [101]-[104] (Odzic), holding that, in making an order under s 85 of the RT Act, the Federal Circuit Court was exercising judicial power, was not determinative of the present case.

104. Senior counsel for the applicant submitted that s 87(4) was the only provision in the RT Act in which the tenant’s breach was a precondition to the power conferred on the Tribunal to terminate a residential tenancy agreement. She submitted that a finding that there was a breach of an agreement did not have direct legal consequences because “that alone does not enliven the power to make an order”. She submitted that this was different from the situation where “a tribunal decides or a Court makes the finding there has been a breach or a contravention of the Act and then has a discretion” whether or not to grant a remedy.

105. Senior counsel for the applicant referred to the breadth of the discretion conferred by s 87(4) and s 87(5). She noted that s 87(5) was a “non-exhaustive” list of factors to be taken into account.

106. Senior counsel for the applicant accepted that s 187 of the RT Act empowered the Tribunal to grant the type of remedies that would be commonly conferred on a court, but submitted that the “proper characterisation of [s 187] comes in at the anterior point of looking at the basis upon which the termination order is made under s 87”. She accepted, however, that s 87(4)(b) involved an “evaluative process”. However, she submitted that a finding under that subsection was not sufficient to enliven the power to make an order. She accepted that broad discretions are commonly conferred on courts, but said that, in the case of courts, “guiding principles will emerge to guide the exercise of broad discretions”, while there could be no such expectation in relation to the exercise of a power by the Tribunal when it might not be constituted by a lawyer.

263. The first element of “common ground” was the specific issue discussed above: accordingly, not being in issue, it cannot have been determined by that case. There is, however, a question as to whether the reasoning of the Court implicitly accepted that assumption, or whether other passages merely reflected the assumption without investigating it. For example, the joint reasons noted:

“[51] Whether a State may sidestep its own courts as components of the federal Judicature by investing an agency of its executive government with the adjudicative authority characteristic of the courts in respect of the matters listed in ss 75 and 76 is a question that has not been squarely determined by this Court. That may not be surprising, given that it has never been suggested that such adjudication is not exclusively a matter for the courts identified in Ch III as potential components of the federal Judicature. However that may be, there are observations in the authorities which support the rejection of the argument now advanced by NSW and the interveners.”

264. What followed was a discussion of cases which denied the power of a State law to detract from the High Court’s functions under Ch III. Nothing relied upon above would challenge that reasoning.

265. Gageler J provided, by way of background, an indication of the meaning of terms used in ss 77 and 73(ii) of the Constitution. He stated:

“[70]   … The first is ‘matter’, which encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated.”

The authorities for that proposition were Re Judiciary and Navigation Acts at 265 (the passage set out above); Fencott v Muller [91] and CGU Insurance Ltd v Blakeley. [92] The passage in Fencottv Muller, apart from referring to earlier cases already noted, stated that “[t]hough the concept of ‘matter’ may be narrower than that of a ‘legal proceeding’, it is a term of wide import.” The judgment further stated that “[t]he concept of ‘matter’ as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris.”[93]

91. (1983) 152 CLR 570 at 603; [1983] HCA 12.

92. (2016) 259 CLR 339; [2016] HCA 2 at [27], [30].

93. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7.

266. Fencott was also referred to by Gleeson CJ and McHugh J in Abebe, but was not considered to cast doubt on the reasoning adopted in that case. [94] Blakeley concerned the scope of federal jurisdiction invested in the Supreme Court of Victoria: the joint reasons in that case noted that “[t]he constitutional requirements for the existence of a matter were not in issue in this appeal.” [95]

     94. Abebe at [35].

     95.    Blakeley at [27] (French CJ, Kiefel, Bell and Keane JJ).

267. I do not understand Gageler J’s reference in Burns v Corbett to “a controversy about legal rights” as meaning that no such controversy can be resolved independently of the exercise of judicial power, unless it is intended to refer only to controversies as to the law. Even the minority in Abebe accepted that Parliament could provide for factual controversies to be resolved finally by a body other than a court. That is, resolution of a factual dispute need not involve an exercise of federal judicial power.

268. Of the majority in Burns upholding the implied limitation approach, Kiefel CJ, Bell and Keane JJ held that any State law that purports to confer “jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.”[96] The joint reasons also addressed the fact that s 77(ii) of the Constitution empowers the Parliament to define the extent to which “the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States”, but confers no power on the Parliament to make laws with respect to any authority vested in a tribunal of a State. The joint reasons noted a submission by the Commonwealth Attorney, “that it is not to be supposed that the scheme for the adjudication of matters listed in ss 75 and 76 of the Constitution by the Federal Judicature established under Ch III might be subverted by a conferral by State law of adjudicative authority in respect of such matters on an administrative body of the State.”[97] The Attorney argued that “s 77(ii) itself assumes that, if adjudicative authority is to be exercised by any State body in respect of any matter listed in s 75 or s 76, that body must be a State court.”

     96. Burns v Corbett at [2].

     97. Burns v Corbett at [36].

269. That submission was accepted by the plurality. [98] On the other hand, the language of s 77, limited as it is to “court” and “courts” reflects the language of the chapeau, referring to “any of the matters” mentioned in ss 75 and 76. That language addresses disputes which are to be determined, according to State (or federal) law by exercise of judicial power. The finding does not reflect any implicit adoption of the correctness of the common assumption.

     98.    Burns v Corbett at [63]; see also Gageler J at [68], [99].

270. The other member of the Court who relied on the implied limitation approach was Gageler J, who stated:

“[67] The High Court has in the past made plain that, except with respect to the subject matters identified in ss 75 and 76 of the Constitution, a State Parliament can confer State judicial power on a State tribunal that is not a court of that State. [99] The ultimate question now for determination is whether the exception is warranted.

[68] My opinion is that the exception is warranted as a structural implication from Ch III of the Constitution. The implication is needed because State legislative power to confer State judicial power on a State tribunal that is not a court of a State must be denied in order to ensure the effective exercise of the legislative powers conferred on the Commonwealth Parliament by s 77(ii) and (iii) to produce by legislation the constitutionally permissible result that an exercise of judicial power with respect to a subject matter identified in s 75 or s 76 occur only under the authority of Commonwealth law, in a forum which meets the minimum characteristics of a Ch III court, so as to give rise to a judgment or order that is appealable directly to the High Court subject only to such exceptions or regulations as the Commonwealth Parliament may prescribe under s 73(ii).”

99. K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 544 [153]; [2009] HCA 4.

271. The reasoning of those members of the Court was consistent with the common assumption that the disputes before the Tribunal in fact fell within the scope of s 75(iv). The other members of the Court, each writing separately, did not accept that such a constraint on State legislative power arose by implication from Ch III of the Constitution. Rather, such a constraint arose as a result of the enactment of ss 38 and 39 of the Judiciary Act, which, by operation of s 109, invalidated any conferral by a State Parliament of “State diversity jurisdiction” upon a body other than a State court. [100]

     100.    Burns at [129] and [145] (Nettle J); [149], [180] and [199] (Gordon J); [252], [258]-[259] (Edelman J).

272. It was not doubted in the present cases that it was open to the parties to agitate the second assumption in Burns, namely that NCAT is not a “court of a State”. I see no reason why it is not open for this Court to address the first assumption, namely that the disputes were “matters between residents of different States, within the meaning of s 75(iv) of the Constitution.”

273. The first assumption was not merely implicit in the reasoning, it was essential to it, especially for the judges who accepted a constitutional implication based upon the terms of Ch III. All members of the Court relied upon the power under s 77 for the Parliament to define the jurisdiction of a federal court with regard to that invested in courts of the States (s 77(ii)) and the power to invest any court of a State with federal jurisdiction (s 77(iii)). These powers can only be exercised with respect to the “matters” referred to in ss 75 and 76. The absence of any discussion of what constitutes a “matter”, subject to passing reference by Gageler J, as dealt with earlier in these reasons, demonstrates that the Court was simply not concerned with those issues, as indeed they did not need to be, given the common assumption. Had they been, there would undoubtedly have been reference to the principles recently articulated in Palmer v Ayres, set out at [245] above.

274. For these reasons, in my view it would be open to this Court to address the scope of the “matters” upon which these cases turn, if the necessary procedural steps were taken.

Conclusions

275. In my view those steps should be taken. While it is important to dispose of individual cases on the issues raised by the parties, the consequences of reaching a conclusion that NCAT lacks jurisdiction in a particular matter may have far reaching consequences, both for other cases and other State tribunals. Such tribunals deal with an extraordinary range of disputes including consumer claims, licensing decisions, disciplinary matters, administrative decisions by government officers, building disputes, retirement village disputes, guardianship matters and retail shop lease disputes. NCAT has jurisdiction conferred on it (otherwise than under the Civil and Administrative Tribunal Act) by some 146 State statutes. It disposes of about 67,000 applications a year. [101] The Appeal Panel stated that “[h]undreds of Tribunal matters each year are between parties who are individuals resident in different States.”[102]

     101.    NCAT Annual Report 2016-2017.

     102. NCAT decision at [5].

276. Similar figures will apply to other State tribunals, such as VCAT and QCAT. Although a relatively small number of applications may involve one individual party from another State, the issues at stake are undoubtedly large and of great public importance. They should not be resolved in a way which disrupts the orderly disposal of such disputes without addressing what is arguably a critical issue.

Orders

277. As that is a minority view, I would make the orders proposed by the Chief Justice with respect to the appeal, for the reasons set out above under the heading “Is NCAT a State court?”

278. The summons seeking judicial review was otiose and should be dismissed, with no order as to costs.

279. LEEMING JA: I have had the considerable advantage of reading the judgments of Bathurst CJ and Basten JA in draft. I agree with Bathurst CJ, for the reasons his Honour gives, that NCAT was exercising judicial power in the Gatsby proceeding. I further agree with the conclusion which Bathurst CJ and Basten JA have each reached, namely, that NCAT was not a “court of a State” for the purposes of s 77(iii) of the Constitution. My reasons may be stated concisely, as also may my reasons as to this Court’s jurisdiction. Those reasons do not repeat the legislative provisions, factual and procedural background or parties’ submissions unnecessarily.

Jurisdiction of this Court

280. The threshold question is this Court’s jurisdiction. That there is even an issue as to jurisdiction reflects what I respectfully regard as a flawed procedure employed by NCAT.

281. In the course of performing its duty of determining the internal appeals, NCAT was obliged to consider the extent of its own jurisdiction. In order to do so, NCAT identified two questions in two pending internal appeals for separate hearing: whether there had been the exercise of judicial power, and whether it was a “court of a State” within the meaning of s 77(iii). But if the answer to the second question was that NCAT was not a “court of a State”, then that question was not one which could be determined by NCAT, because it involved the determination of a matter in federal jurisdiction arising under the Constitution. Only a superior court can pronounce authoritatively on the limits of its own jurisdiction. At best, all that NCAT could do was to form and express an opinion, in accordance with what Brennan J had said, sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 242:

“An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.”

282. The fact that a legally binding answer to one of the questions could only be given by NCAT if it were answered in one way, and not the other, suggests that a procedurally flawed course was taken. At the practical level, it was also on the cards that in the event that NCAT determined, contrary to the Attorney General’s submission, that it was a court, the matter would go further (as had occurred when the Administrative Decisions Tribunal had, wrongly, determined that it was a court in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185). That said, I am also conscious that, in accordance with what was held in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14, NCAT was unable to avail itself of the course of referring a question of law to the Supreme Court pursuant to s 54 of the NCAT Act, and that the course taken by NCAT gave this Court the benefit of its considered reasons on the question. But the most straightforward approach would have been, as the contradictor submitted in this Court, for an application for a declaration and an order in the nature of prohibition to have been made in this Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).

283. The procedure adopted by NCAT matters because an issue now arises as to this Court’s jurisdiction. The answers to the questions posed by it were formally embodied in what were styled as two “orders”. The contradictor submitted that no appeal lay from the orders made by the Appeal Panel embodying its answers:

“While the Appeal Panel in the present cases embodied its answers in a section of its reasons described as ‘orders’, it was not exercising any express power to determine separate questions. It was therefore doing no more than signalling, for the benefit of the parties, the basis on which it intended to proceed in determining each matter. That was not a ‘decision’ in the relevant sense.”

284. I do not accept the submission. First, it matters not whether NCAT was exercising any “express” power. It has long been established that a court is able in its inherent jurisdiction to hear and determine a case in separate phases, aside from the separate question procedure authorised by modern rules of court: see Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 427 and O’Connor v State of New South Wales [2017] NSWCA 335 at [17], both referring to the fact that the English Supreme Court Practice has long contained the following note: “Apart from these rules, the trial judge has inherent jurisdiction to try any separate issue or question before the others”. I see no reason why the Appeal Panel of NCAT could not take the same course, irrespective of its status as court or tribunal. The power conferred upon the Tribunal by s 38(1) of the Act to determine its own procedure for which no provision is otherwise made, to be exercised in accordance with the obligation to give effect to the guiding principle of facilitating the just, quick, and cheap resolution of the real issues in the proceedings (see s 36(1) of the Act) sufficed to empower the Appeal Panel to act as it did. In my view whether that is “express” or otherwise is beside the point.

285. Secondly, the Appeal Panel was doing more than “signalling” its future determination of the proceedings. Rather than merely expressing its reasons and conclusions, the Appeal Panel made orders answering questions, which conveyed a concluded determination on the questions it had identified. It does not matter that the “orders” were not such as to give rise to a directly enforceable obligation. What matters is that they formally recorded a concluded determination on two legal issues.

286. Thirdly, the right of appeal conferred by s 83 of the NCAT Act is, like all appeals, a creature of statute. One aspect of that principle is that the metes and bounds of the appeal are determined by statute. The difficulty that arises in some cases from appeals being expressed to lie only from judgments or orders has been avoided by s 83, which extends to appeals on a question of law “against any decision made by the Tribunal in the proceedings”. The right of appeal conferred by s 83 is narrow insofar as it is confined to a question of law and qualified by the requirement of leave. However, it is broad insofar as it extends to “any decision”, rather than, as is common, “any judgment or order”.

287. Fourthly, I see no reason why the broader language of “decision”, reinforced by the word “any”, does not extend to the answers to separate questions embodied in the Appeal Panel’s orders. Those orders were the Appeal Panel’s “decision” on the issues identified for separate determination. There is nothing in the Act to detract from the words “any decision” being given a broad meaning. Indeed, there is a very wide definition given to “decision” in s 5 (although it may be that that applies only to decisions which are the subject of review by NCAT, rather than the s 83 decision of NCAT; it is not necessary to determine whether that is so). For present purposes it suffices to say that nothing in s 5 or elsewhere in the Act cuts down the meaning of “any decision”, and there is no reason to read that broad language narrowly, so as not to extend to the answer to a question.

288. Fifthly, contrary to a further submission made by the contradictor to the effect that “at least ordinarily a decision on a separate question is subject to appeal either by virtue of a specific provision ... or on the basis that the decision is embodied in an order”, nothing turns upon the absence of a separate grant of a right of appeal from an answer to a question (such as in s 103 of the Supreme Court Act 1970 (NSW)) when once it is borne in mind that the right of appeal granted by s 83 is broader and extends to any decision.

289. It follows that this Court has jurisdiction to hear and determine the Attorney’s appeals.

NCAT is not a “court of a State” for the purposes of s 77(iii)

290. There may be cases at the margins when an elaborate analysis is called for in order to determine whether a body is a “court of a State” for the purposes of s 77(iii) of the Constitution. I do not regard the present case as other than clear. That is a consequence of the history of the legislation constituting NCAT.

291. First, it had been established by Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185 that the Administrative Decisions Tribunal was not a court for the purposes of s 77(iii). Skiwing was applied in that respect in Sunol v Collier. I am unaware of the proposition that the Administrative Decisions Tribunal was not a court for the purposes of s 77(iii) ever thereafter being doubted.

292. NCAT is the successor to the Administrative Decisions Tribunal (although it is also the successor to a number of other tribunals), in the sense that NCAT has succeeded to its jurisdiction, each former presidential or other member became a member of NCAT (NCAT Act, Schedule 1, cl 5) and part heard and pending proceedings in the Administrative Decisions Tribunal were deemed to be part heard and pending proceedings in NCAT (NCAT Act, Schedule 1, cll 7 and 8). Yet there is nothing in the NCAT Act which suggests that NCAT, or the Appeal Panel of NCAT, was to be, unlike its predecessor, a court of a State for the purposes of s 77(iii). The limited power to punish for contempt in s 73 of the NCAT Act does not materially detract from the bulk of provisions, to which the Chief Justice has referred, which point to it being a tribunal. To those I would add subs 54(4) which prevents NCAT from proceeding in a manner or making a decision which is inconsistent with the opinion of the Supreme Court on a question of law referred to it. If NCAT were a court, it would be within the curial hierarchy of NSW and would therefore be bound as a matter of precedent to proceed consistently with the determination of the Supreme Court. Section 54(4) is thus entirely otiose unless NCAT is not a court. The subsection would appear to be directed to the issues which can arise in determining whether a tribunal is bound (see for example Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 11-12; [1987] HCA 19). No answer was made by the contradictor to that point, which was raised in oral submissions and adopted by the Commonwealth Attorney-General, who observed that subs 54(4) “is a very odd provision if the tribunal is a court.”

290. Secondly, and to my mind dispositively, new Part 3A was inserted into the NCAT Act by the Justice Legislation Amendment Act (No 2) 2017 (NSW), commencing on 1 December 2017, following this Court’s decision in Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3. The new Part is titled “Diversity proceedings”.

291. New s 34A defined “authorised court” to mean the District Court or the Local Court – two bodies which are unquestionably courts for the purposes of s 77(iii) and which are authorised, subject to their jurisdictional limitations, to decide matters in federal jurisdiction.

292. New s 34B empowers a person with standing to make an original application or external appeal, with the leave of an authorised court, to make the application or appeal to the court instead of the Tribunal. Section 34B(2) provides that:

(2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that:

(a) the application or appeal was first made with the Tribunal, and

(b) the Tribunal does not have jurisdiction to determine the application or appeal because its determination involves the exercise of federal diversity jurisdiction, and

(c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and

(d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court.”

296. New s 34D provided that the provisions of Part 3A prevailed to the extent of any inconsistency between those provisions and any other provisions of this Act or other legislation.

297. The purpose of Part 3A is plain. The former exclusive authority of NCAT to determine classes of disputes is now qualified, insofar as those disputes are matters in federal diversity jurisdiction. To that extent, new provisions permit parties to make application to a court which unquestionably does have jurisdiction to hear and determine those disputes.

298. The contradictor accepted that the entirety of that new Part would have no operation if, as NCAT held, it was a court. That concession was properly made.

299. To my mind, the 2017 amending legislation constitutes the clearest legislative statement that NCAT is not a court for the purposes of s 77(iii). The legislation was addressed directly to the precise point in issue – whether NCAT was a court for the purposes of s77(iii). The premise of the legislation is that NCAT lacks authority to determine “diversity proceedings”, which is to say, it is not a court for the purposes of s 77(iii).

300. The Appeal Panel mentioned the legislation at [39]-[41], but only briefly, because neither the Attorney nor the contradictor had relied upon it. (Of course, when the matter was heard, the legislation had not commenced, and might never commence, although the bill had been enacted.) The Appeal Panel reasoned as follows:

“The need for Pt 3A arises only if Burns v Corbett lays down the general legal rule that NCAT is not a ‘court of a State’ and consequently cannot exercise federal judicial power. As we have explained above, Burns v Corbett does not lay down any such general rule. Further, Pt 3A does not have a role to play if the Tribunal is not required to exercise judicial power in resolving a matter. As a result, if either separate question (a) or (b) should be answered ‘yes’, Pt 3A will be unnecessary and the Tribunal will be able to determine matters under the RT Act between residents of different States.

Finally, Pt 3A does not relate to the nature, functions or processes of the Tribunal or the extent to which NCAT meets the requirements for a Ch III court. Consequently, consideration of its provisions provides no significant assistance in answering either of the separate questions.”

301. I disagree with that reasoning. First, the need for Part 3A did not turn on what was established by Burns v Corbett. The Appeal Panel, with respect correctly, considered that Burns v Corbett did not establish a proposition which was common ground between the parties. But the need for Part 3A turns not on what this Court’s decision established (as opposed to what had been common ground), but on whether disputes between residents of different States which might be commenced in NCAT could be determined by NCAT. That is directly relevant to whether NCAT is a “court of a State”, rather than whether Burns v Corbett established that NCAT was a “court of a State”. As the State Attorney rightly submitted:

“Part 3A is premised on the Tribunal being unable to exercise federal diversity jurisdiction. ... Pursuant to s 77(iii) of the Constitution and s 39 of the Judiciary Act, the Tribunal would be capable of exercising such jurisdiction if it was a ‘court of a State’. Part 3A can accordingly be read as evidencing a legislative intention that the Tribunal is not a ‘court of a State’.”

302. Secondly, it is not the case that new Part 3A does not relate to the “nature, functions or processes” of the Tribunal. It creates a new dispensation whereby applications which otherwise would be within the exclusive jurisdiction of NCAT may be made, with leave, to an authorised court. To that extent, it detracts from NCAT being the only forum where certain classes of disputes can be determined.

303. Thirdly, as will be elaborated below, the proposition that the amending legislation does not relate to “the extent to which NCAT meets the requirements for a Ch III court” discloses what I regard as the key error in the reasoning process of the Appeal Panel.

304. Fourthly, the Appeal Panel’s reasoning puts to one side the powerful effect that legislation may have upon courts’ freedom to alter the law. The most recent example of this may be seen in a decision of the High Court delivered (coincidentally) on the same day as its own decision. In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 92 ALJR 248 at [52], the High Court referred to two pieces of legislation which did not directly bear upon the construction of the Security of Payments Act as held in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394. The High Court said that “it would have been a strong thing for [the Court of Appeal], as indeed it would be for this Court to have taken any other course” than following Brodyn. They added that the failure to legislate so as to alter the effect of Brodyn was “a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in Brodyn, and given effect in the decision of the Court of Appeal in this case, was other than a faithful reflection of the intention of the legislature.”

305. True it is that these appeals do not formally involve the question whether Skiwing and Sunol were wrongly decided. These appeals concern NCAT, the successor body. However, the principle in Probuild continues to apply. Plainly the Legislature proceeded on the basis that NCAT, like its predecessor the Administrative Decisions Tribunal, was not a court for the purposes of s 77(iii). This Court should not now alter the course of authority in Skiwing and Sunol upon which the Legislature has now enacted.

306. I return to the third point mentioned above, to explain why in my respectful view the Appeal Division fell into error. The jurisprudence relating to independence and impartiality was largely formulated by challenges to State legislation conferring incompatible functions upon bodies which otherwise were unquestionably courts of a State in which federal jurisdiction otherwise might be invested. The question in the present case is quite different. As Mr Donaghue QC for the Commonwealth Attorney-General submitted, the State has a legislative choice to create an independent, procedurally fair and impartial Tribunal to exercise judicial power, or to create a court to do the same thing. The substantial error in the reasons of NCAT was to rely upon indicia which, in a polity which lacks a strong notion of separation of powers, fall well short of being dispositive of whether the body is a court or a Tribunal.

Conclusion

307. For those reasons, I would allow each appeal, set aside the answer to question 1(b) in each proceeding and instead answer that question “No”. I agree with the Chief Justice that declaratory relief should issue and that in the absence of argument and notices under s 78B of the Judiciary Act it is inappropriate to address whether there was a “matter” before NCAT. I agree with the orders proposed by the Chief Justice.

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Endnotes

Amendments

07 November 2018 - [58] change "78(4)" to "78"

[92] change "Civil Administrative Tribunal Act 2009" to "Civil and Administrative Tribunal Act 2009"

[122] change "(1971) 123 CLR" to "(1970) 123 CLR"

[253] change "deprivation" to "depredation"

[283] change "mater" to "matter"

03 September 2019 - Footnotes amended

10 September 2019 - [284] "suffice" changed to "sufficed"

[301] "Burns v Gaynor" changed to "Burns v Corbett"

[304] "indeed" inserted before "it would be"

Decision last updated: 10 September 2019