Burns v Corbett (No 2) - [2016] NSWSC 612

Supreme Court

New South Wales

Medium Neutral Citation: Burns v Corbett (No 2) [2016] NSWSC 612
Hearing dates: 4 May; 12 July 2016
Date of orders: 26 July 2016
Decision date: 26 July 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)Under Rule 28.2 Uniform Civil Procedure Rules 2005, order that the following questions be determined separately before any further hearing of the contempt charges:
(a) Did the Administrative Decisions Tribunal have jurisdiction to resolve the complaint under s 49ZT Anti-Discrimination Act 1977 (NSW) made by the plaintiff against the defendant?
(b) Did the Appeals Panel of the NSW Civil and Administrative Tribunal have jurisdiction to resolve the said complaint?
(c) Is the judgment obtained by the filing of the certificate in the registry of the Supreme Court in accordance with s 114 of the Anti-Discrimination Act 1977 (NSW) valid and enforceable against the defendant even if the orders of the relevant Tribunal the subject of the certificate are void or voidable?
(2) Under Rule 1.21 UCPR, remove the decision on the separate question to the Court of Appeal;
(3) List the separate questions for directions before the Registrar, Court of Appeal at 9:00 am on 1 August 2016;
(4) List the proceedings for mention at 9:00 am on 25 November 2016 before Campbell J;
(5) Costs reserved.

Catchwords: ADMINISTRATIVE LAW– contempt proceedings from judgment enforcing decision of the NCAT – where question of validity of judgment due to question of jurisdiction of the NCAT – where similar question may be referred to the Court of Appeal
PROCEDURE – adjournment of proceedings– where remittal of separate questions to the Court of Appeal– further hearing adjourned until questions determined
Legislation Cited: Anti-Discrimination Act 1977 (NSW) – s 114, 49ZT
Civil Administrative Tribunal Act 2013 (NSW) – s 54
Judiciary Act 1903 (Cth) – s 78B
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) – r 28.2
Cases Cited: Burns v Corbett [2013] NSWADT 227
Corbett v Burns [2014] NSWCATAP 42
Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128
Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619
Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77
Wishart v Frazer [1941] HCA 8; 64 CLR 470
Category: Procedural and other rulings
Parties: Gary Burns (Plaintiff)
Tess Corbett (Defendant)
Representation:
Counsel: K Madgwick (Plaintiff)
J Loxton(Defendant)
Solicitors: Allens Linklater (Plaintiff)
Robert Balzola and Associates (Defendant)

File Number(s): 2014/280109

Judgment

I am part heard in proceedings for contempt of court. The statement of charge contains two counts of alleged contempt. Both are based upon non-compliance with a judgment of this court entered on 24th September 2014. The judgment was entered under s 114 Anti-Discrimination Act1977 (NSW) which relates to the enforcement of non-monetary orders made under that Act. So far as is material, the section provides:

“(2) For the purpose of enforcing an order, or part of an order, to which this section applies,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Corbett (No 2)

Details

AGLC: Burns v Corbett (No 2) [2016] NSWSC 612
Case: [2016] NSWSC 612
Decision Date: 26 July 2016

CaseChat Overview and Summary

The case of Burns v Corbett (No 2) involved the applicants, Burns and others, who were seeking contempt proceedings against Corbett, who had failed to comply with a judgment enforcing a decision of the New South Wales Civil and Administrative Tribunal (NCAT). The matter was heard in the Supreme Court of New South Wales. The applicants argued that Corbett's failure to comply with the judgment rendered him in contempt of court. Corbett, on the other hand, contended that the NCAT's decision, and by extension the judgment, was invalid due to a jurisdictional error, and thus, he could not be held in contempt.

The legal issues that the court had to resolve revolved around the validity of the NCAT's decision and whether the Supreme Court had the jurisdiction to enforce that decision. The core issue was whether the Supreme Court could entertain contempt proceedings if the underlying judgment enforcing the NCAT's decision was potentially invalid due to jurisdictional error. The court also needed to determine if it should remit the jurisdictional question to the Court of Appeal or proceed with the contempt proceedings.

The court, after thorough deliberation, determined that the question of the validity of the NCAT's decision, which was pivotal to the contempt proceedings, was best addressed by the Court of Appeal. The Supreme Court found that it was not appropriate to determine the validity of the NCAT's decision itself, as that would involve a review of the NCAT's jurisdiction. Consequently, the court decided to adjourn the contempt proceedings until the Court of Appeal had determined the jurisdictional question. This approach ensured that the contempt proceedings would be based on a sound and valid judgment, thus maintaining the integrity of the contempt process.

Orders