Hall v University of Canberra - [2020] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HALL -v- UNIVERSITY OF CANBERRA [2020] WADC 25
CORAM:   TROY DCJ
HEARD:   4 NOVEMBER, 5 DECEMBER 2019 & 29 JANUARY 2020
DELIVERED          :   24 FEBRUARY 2020
FILE NO/S:   APP 65 of 2019
BETWEEN:   SIMON HALL
Appellant
AND
UNIVERSITY OF CANBERRA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE EDWARDS
File Number            :   ROC GCLM 560/2019

Catchwords:

Appeal from Magistrates Court - Staying proceedings generally - Staying proceedings under Service and Execution of Process Act (1992) (Cth) - Forum non conveniens - Meaning of 'Court of another state' - Distinction between court and a tribunal

Legislation:

ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal Regulation 2009 (ACT)
Court Procedures Rules 2006 (ACT)
District Court Rules 2005 (WA)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Magistrates Court Act 1930 (ACT)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13, s, 14, s 16, s 17
Service and Execution of Process Act 1992 (Cth), s 3, s 8, s 16, s 20
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 109

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms N F Case

Solicitors:

Appellant	:	Not applicable
Respondent	:	Legal Office, University of Canberra

Case(s) referred to in decision(s):

Academy of Celebrancy Australia v Besso [2009] VCAT 689
Ammann v Wegener (1972) 129 CLR 415
Aston v Irvine (1955) 92 CLR 353
Attorney General (NSW) v Gatsby [2018] NSWCA 254
Attorney-General v British Broadcasting Corporation [1981] AC 303
Batistatos v Newcastle City Council (2006) 226 CLR 256
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Dalton v NSW Crime Commission (2006) 227 CLR 490
Desmond v ACT Health (T/as the Canberra Hospital) [2017] NSWDC 263
GS v MS [2019] WASC 255
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564
Mustac v Medical Board of Western Australia [2007] WASCA 128
Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282
R v Murphy (1985) 158 CLR 596
Sakari Resources Ltd v Purvis [2016] WASCA 24
Seymour v Jaeger [2017] NSWSC 25
Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530
Transport Workers' Union of Australia v Bentley [2001] FCA 671
Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

TROY DCJ:

Introduction

A former law student, Mr Simon Hall, lodged a claim for damages against the University of Canberra (the University), on the basis that the University made representations that the law degree it conferred on him met the educational requirements for admission to the legal profession in Western Australia. It transpired that this was not the case. Mr Hall has now completed the requisite additional unit, at a different university, and is now eligible for admission to the profession.
On 6 August 2019 her Honour Magistrate Edwards, sitting in the Magistrates Court of Western Australia in Rockingham, dealt with a number of applications connected to this claim. For the purposes of the present appeal, her Honour found that the court had the power to stay Mr Hall's claim,
exercising the power under s 16(1)(c) of the Magistrates Court of Western Australia (Civil Proceedings) Act 2004 (WA) 'MCCPA' and invoking the provisions of s 20 of the Service and Execution of Process Act (1992) (Cth) 'SEPA'.

Statement of issues

A number of issues arise:
•Was there an application to stay the matter under the Service and Execution of Process Act 1992 (Cth) (SEPA) before her Honour?
•Was her Honour separately entitled to stay the matter under s 16 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA), and if so was the correct legal test applied?
•If her Honour was entitled to stay the matter under the SEPA, did her Honour have regard to all factors specified at s 20(4) of that Act?
•Did her Honour erroneously conclude that Mr Hall had adduced no evidence on certain points, when he had?
•If the only appropriate jurisdiction in the Australian Capital Territory (ACT) is the ACT Civil and Administrative Tribunal (ACAT), does that constitute a court within the meaning of s 20(3) of the SEPA?
•Finally, and alternatively, was her Honour entitled to stay the matter under the SEPA on the basis that the local court in NSW was an appropriate court of another state with jurisdiction?
As will be seen, the most vexed of those issues is the penultimate issue. In essence the case boils down to whether Mr Hall's $24,555 claim should be heard in in the Magistrates Court of Western Australia in Rockingham or the ACAT. The controversies generated by this appeal are somewhat disproportionate to that central issue.

General principles

The statutory provisions governing an appeal such as this were encapsulated by Derrick DCJ (as his Honour then was) in Brocklehurst v Wolinski.[1]
[1] Brocklehurst v Wolinski [2015] WADC 36 [12] - [15].
Section 40(4A) of the MCCPA provides that the appeal must be conducted in accordance with the District Court Rules 2005 (WA) (DCR). Section 40(4) of the MCCPA provides that the court must decide the appeal on the material and the evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted. Section 40(5) provides that leave may only be given under s 40(4) in exceptional circumstances.
Rule 50(1) provides that an appeal to the court must be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree. Rule 50(2) provides that at the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the court. Rule 50(3) provides that the court is not to grant such leave unless satisfied that there are special grounds for doing so. Rule 50(4) provides that the rule is subject to the written law that provides for the appeal to be made to the court.
It is clear from s 40(4) of the MCCPA and r 50(1) and r 50(2) that an appeal from a decision of a magistrate to the District Court is by way of rehearing. The ability of the District Court to receive and admit new evidence does not render the appeal a hearing de novo.
Given that the appeal is by way of a rehearing it is necessary for an appellant to demonstrate error in the court below. Thus the appellate powers of the District Court are only exercisable if an appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.
The orders that the District Court may make on the appeal if error is demonstrated are set out in s 43 of the MCCPA (citations omitted).

This appeal

In the present case Mr Hall did not seek leave to adduce any additional evidence.
Mr Hall's appeal against the decision below generates a number of issues. The appeal notice dated 26 August 2019 sets out six grounds of appeal although ground 1 is merely an introduction to the grounds that then follow. I will describe ground 2, as it appears in the appeal notice, as ground 1. I will follow that approach with grounds 3 ‑ 6 on the appeal notice, concluding with ground 6 on the appeal notice. I will refer to that ground as ground 5 and note that it has a number of sub‑particulars. I note that this was the approach taken by Mr Hall in his first written submissions to this court of 16 October 2019.

Ground 1 - was there an application under the SEPA before the Magistrates Court?

By ground 1, Mr Hall submits that there was no application before the magistrate to stay proceedings under the SEPA. It is common ground that there was no formal application before her Honour. Mr Hall lodged a general procedure claim, form 3 in the Magistrates Court of Western Australia (civil jurisdiction) on 12 April 2019, seeking damages of $24,555.03.
The defendant's address for service was given as University Drive South, Bruce, Australian Capital Territory. The method of service was said to be by the claimant.
Given that this was a case where an initiating process issued in a state (Western Australia) was served in another state (the ACT), s 16 of the SEPA required Mr Hall to attach the requisite notices as prescribed to the process, or the copy of the process, served. Under the Service and Execution of Process Regulations 2018 (Cth) the requisite notice was form 1, which seemingly was not attached. No point appears to have been taken by the University in that regard.
The University filed a form 21 statement of defence to the general procedure claim on 21 May 2019, asserting that the parties had no connection to Western Australia. To the extent that any cause of action exists, the relationship between the parties was based in administrative law and the relevant laws are enactments of the Australian Capital Territory. The University submitted that the claim should be struck out under the provisions of s 17(1)(a) ‑ s 17(1)(e) inclusive of the MCCPA. That assertion was formally set out in an accompanying form 23 application of the same date, seeking orders that the whole of the claim be struck out.
Section 17 provides, inter alia that the court may strike out all or a part of a case statement, if any claim in it is outside the court's jurisdiction.
The submissions were supported by an affidavit affirmed by Ms Kilpatrick, a legal officer employed by the University, dated 21 May 2019 which reiterated at par 18 that neither the claimant nor the defendant were resident in Western Australia.
So, at that stage the University made no reference to and did not invoke the provisions of the SEPA.
In reply, Mr Hall affirmed an affidavit on 12 June 2019 in support of both his response to the University's 21 May 2019 application and also his own form 23 general application that all of the defence be struck out.
The matter first came before her Honour on 18 June 2019. Mr Hall appeared in person and Ms Kilpatrick appeared for the University. Her Honour was understandably not in a position to deal with the matter that day and she adjourned the case initially until 30 July 2019, but then until 6 August 2019. Ms Kilpatrick filed further submissions dated 16 July 2019 which again made no reference to the SEPA.

Conclusion – ground 1

Importantly, on 24 July 2019 a registry supervisor at the Rockingham Magistrates Court, on behalf of her Honour, informed both parties that her Honour would appreciate any submissions that the parties might wish to make in respect of s 20 of the SEPA by 1 August 2019.
Section 15 (1) of the MCCPA permits the court to exercise its powers on the application of a party or on its own initiative, unless that Act or the rules of court or another written law provides otherwise. The court may make an order on its own initiative with or without allowing the parties to make submissions or hearing the parties. If the court decides to allow the parties to make submissions before making an order on its own initiative, it must notify each party likely to be affected by the order of how and when the submissions are to be made.
The only sensible construction of the 24 July 2019 communication is that her Honour intended that any submissions received in response to that request could stand as an application to invoke s 20 of the SEPA.
Further, I am quite satisfied that the succinct submissions filed by the University dated 25 July 2019 amounted to an application that the court has the power under the SEPA to order the proceedings be stayed. Mr Hall fully engaged with the submissions through his own submissions filed on 6 August 2019, although he questioned whether or not the University was seeking a stay under these provisions, given the absence of a specific application.
I am satisfied that the communication from the court on 24 July 2019 relieved the University of the obligation under r 109(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) to lodge an application in an approved form. I construe this communication as the giving of leave to the parties to make an application orally.[2] There was accordingly an application before the court on 6 August 2019 to stay proceedings under s 20 of the SEPA. Any other construction would be a triumph of form over substance. Ground 1 fails.

Ground 2: could the magistrate independently enliven the SEPA stay power?

[2] Magistrates Court (Civil Proceedings) Rules 2005, r 109(2).

Ground 2 is inextricably linked to ground 1. Mr Hall asserts that for the matter to be brought within the terms of the SEPA there must be an application before the court, which he submitted there was not. I have determined that there was. Mr Hall also asserts that there is no power within the SEPA permitting a court to act on its own initiative.
Section 20(2) provides that a person served (the University) may apply to the court of issue (the Magistrates Court of Western Australia) for an order staying the proceeding. I have found that the University did so through its supplementary written submissions of 25 July 2019. It was open to her Honour to order that the proceeding be stayed under s 20(3) if her Honour was satisfied of the terms of that subsection. Having raised the issue of the applicability of the SEPA, there was an application before her Honour. Ground 2 fails.

Ground 3: on what basis can a Magistrates Court in this state, in the type of circumstances that arise here, stay proceedings?

I turn to ground 3. The effect of the SEPA is that there is now general power to serve any person within the Commonwealth of Australia with process issued out of the courts of any state or territory, as well as the federal courts. The SEPA is entitled:
An Act to provide for the service and execution, throughout the Commonwealth, of process of courts and tribunals, and for related purposes.
The current version of the SEPA was enacted in 1992 following review of the Service and Execution of Process Act 1901 (Cth) by the Australian Law Reform Commission, which reported on its review in Australian Law Reform Commission Reports, Service and Execution of Process [1987] ALRC 40, (the report).
Mr Hall contends that using the MCCPA case management stay power, whether to enliven the SEPA stay power or to independently stay the case, is contrary to the SEPA, and therefore unable to be exercised pursuant to the MCCPA's conditions on exercising case management powers. Mr Hall relies upon s 8 of the SEPA which reads as follows:
8 Effect on the operation of other laws
(1)This Act does not affect a decision of a court or tribunal to allow substituted service of a process.
(2)This Act does not affect the operation of:
(a)the Transfer of Prisoners Act 1983, or a law of a State that, in an instrument published under section 5 of that Act, is declared to be a State transfer law of the State; or
(b)the Removal of Prisoners (Territories) Act 1923; or
(c)the Removal of Prisoners (Australian Capital Territory) Act 1968 of the Australian Capital Territory; or
(d)the Family Law Act 1975, or the regulations or Rules of Court made under that Act.
(3)This Act does not affect the operation of a law of a State so far as the law provides for service of a subpoena on a person:
(a)only after permission or leave has been given; or
(b)only if it is served not less than a specified number of days, being greater than 14 days, before the date for compliance with the subpoena.
(3A)This Act:
(a)does not affect the operation of the cross‑border laws; and
(b)does not apply to a person in relation to a particular matter if the cross‑border laws would, apart from this Act, apply to the person in relation to the matter.
(4)Subject to this Act, this Act applies to the exclusion of a law of a State (the relevant State) with respect to:
(a)the service or execution in another State of process of the relevant State that is process to which this Act applies; or
(b)the service or execution in the relevant State of process of another State that is process to which this Act applies; or
(c)the service or execution in another State of judgments of a court of the relevant State that are judgments to which this Act applies; or
(d)the service or execution in the relevant State of judgments of a court of another State that are judgments to which this Act applies; or
(e)the service or execution in another State of judgments to which this Act applies that are orders of a tribunal of the relevant State; or
(f)the service or execution in the relevant State of judgments to which this Act applies that are orders of a tribunal of another State.
Plainly, the SEPA does not apply to the exclusion of a law of a state generally. It applies to the exclusion of a law of a state with respect to the circumstances set out in s 8(4)(a) ‑ s 8(4)(f). Section 8(4) does not embrace the power to stay proceedings.
In her reasons her Honour stated[3] that although the University had not lodged a form 23 application seeking a stay of the current proceedings under s 20 of the SEPA, s 16(1)(c) of the MCCPA permitted the court of its own motion to stay a case under s 20. As will be seen, her Honour considered that she was entitled to stay proceedings under s 16(1)(c) of the MCCPA read with s 20(3) and s 20(4) of the SEPA and her Honour did so.
[3] ts 9.
I note that under s 13 of the MCCPA, in dealing with cases the court is to ensure that cases are dealt with justly. That includes ensuring that cases are dealt with efficiently, economically and expeditiously. And that the court's judicial and administrative resources are used as efficiently as possible.
Section 14(4) of the MCCPA provides that the court must not exercise a case management power if to do so would be contrary to another written law. As already noted, the court may exercise its powers on its own initiative unless this Act or the rules of court or another written law provides otherwise.

Conclusion - ground 3

Section 16 provides that amongst other things, the court may stay any case generally for the purposes of controlling and managing cases and trials. I do not perceive any conflict or tension between s 16 of the MCCPA and s 20 of the SEPA. Whilst in my view her Honour conflated the two provisions, they represent two discrete basis upon which a Magistrates Court in this state can stay proceedings.
Her Honour was entitled, in an appropriate case, to stay proceedings under s 16 of the MCCPA and also under s 20 of the SEPA. Her Honour was only entitled to stay under s 16, however, if her Honour applied the correct common law test. Her Honour was only entitled to stay under s 20, if her Honour was satisfied that a court of another state that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.[4] I have emphasised those words because of the potential constitutional issue that arises as discussed below. In those circumstances her Honour had to take into account all relevant factors specified in s 20(4).
[4] SEPA s 20(3).
Section 20(9) provides that s 20 does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in s 20(3). So a court can stay proceedings, as might be expected, for reasons other than a conclusion that it is satisfied that a court of another state is the appropriate court to determine those matters.
Section 20(9), read with s 8 of the SEPA, does not permit a conclusion that a court, when considering a stay on the basis that another state is the appropriate court for the matter, must exclusively engage s 20(3) and s 20(4). I am not satisfied that it is clear from the terms of s 20, read with s 8, that it is intended to cover the field when it comes to the question of staying proceedings in one state because there is a more appropriate jurisdiction in another state. Ground 3 fails.

Ground 4: what is the correct test for staying proceedings under s 16 when the issue of an alternative jurisdiction arises?

In considering ground 4 and the numerous particulars under the umbrella of ground 5, I proceed on the basis that her Honour had the power to stay under s 16 of the MCCPA and also s 20(3) of the SEPA. By ground 4 Mr Hall argues that if the court did have the power to stay under s 6 of the MCCPA, the correct test is whether the Magistrates Court of Western Australia is a clearly inappropriate forum, and that such a test was not met. Mr Hall contends that in staying proceedings under s 16, her Honour applied the incorrect test. And that if the correct test had been applied a different decision should be reached.

The test adopted in the Magistrates Court

Before considering the merit of that argument it is necessary to analyse her Honour's approach in reaching the decision to stay proceedings. Her Honour identified the question as being whether the Magistrates Court of Western Australia is the appropriate forum.[5] As I have observed, her Honour does appear to have conflated the question of whether to stay under s 16 of the MCCPA with the question of whether to stay under s 20(3) of SEPA.[6]
[5] ts 12.
[6] ts 12, second complete paragraph.
Having referred to, and set out, the non‑exhaustive criteria under s 20(4), her Honour set out the factors which connected the dispute to Western Australia.[7] Her Honour then set out the factors which connected the dispute to the ACT.[8]
[7] ts 12 - ts 13.
[8] ts 13.
Ultimately, her Honour concluded that there was a preponderance of factors linking the dispute with the ACT, so that objectively the dispute has the most real and substantial connection with the ACT rather than Western Australia.
Her Honour indicated that she would stay the proceedings in the Magistrates Court of Western Australia generally. In using the term 'generally' her Honour referred to a term that appears in s 16 but not in s 20(3). I conclude that the approach adopted by her Honour was to exercise her power under s 16 of the MCCPA but by reference to the considerations set out in s 20 of the SEPA.

The doctrine of forum non conveniens

As a general proposition, the circumstances in which a stay may be granted are not easily determined or categorised. Mr Hall submits that that the appropriate test at common law, when deciding whether to stay proceedings in one jurisdiction because there is an alternative jurisdiction in Australia within which the dispute could be heard, is the same test that applies under the doctrine of forum non conveniens. This is the private international law doctrine conferring on a court a discretionary power to decline jurisdiction when the convenience of the parties and justice would be better achieved by resolving the dispute in another forum. In determining whether to accept or decline jurisdiction, the court considers factors such as the ease of access to sources of proof, the governing law and the location and availability of witnesses. An Australian court may decline to exercise jurisdiction if it finds that it is a clearly inappropriate forum to determine the application: Voth v Manildra Flour Mills Pty Ltd.[9]
[9] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
This doctrine has been commented upon on numerous occasions, by way of example in Sakari Resources Ltd v Purvis.[10] As noted by Newnes JA[11] (Buss and Murphy JJA agreeing), where a party has regularly invoked the jurisdiction of an Australian court, the proceedings will not be stayed unless the defendant can establish that, having regard to the circumstances of the case and the availability of an appropriate tribunal in a foreign country, the Australian court is clearly so inappropriate a forum for the determination of the dispute that it would be oppressive or vexatious for the proceeding to continue. The continuation of the proceedings will be oppressive where they would be 'seriously and unfairly burdensome, prejudicial or damaging' and will be vexatious where they would be 'productive of serious and unjustified trouble and harassment to the defendant'.[12]
[10] Sakari Resources Ltd v Purvis [2016] WASCA 24.
[11] Sakari Resources Ltd v Purvis [45].
[12] See also Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 [17] ‑ [22].
Those cases, and many others, involved comparison between a jurisdiction in Australia and a foreign jurisdiction. Here, one is concerned with a comparison between two Australian jurisdictions namely Western Australia and the ACT. I am satisfied that the doctrine of forum non conveniens also applies in cases where one is comparing two domestic jurisdictions.[13]
[13] Transport Workers' Union of Australia v Bentley [2001] FCA 671 [29] ‑ [40] (Weinberg J) applying Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 (French J) (Beaumont and Finkelstein JJ agreeing)).
In considering whether to stay under s 16 the learned magistrate was required to apply the Voth test. Accordingly, the proceedings that Mr Hall has commenced in Western Australia cannot be stayed under s 16, unless the University can establish that, having regard to the circumstances of the case and the availability of an appropriate tribunal in the ACT, the Magistrates Court of Western Australia is clearly so inappropriate a forum for the determination of the dispute that it would be oppressive or vexatious for the proceeding to continue. The University must demonstrate that continuation of the proceedings would be seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment to the University.
As Newnes JA also noted[14] different considerations arise where, there are both local proceedings and proceedings in a foreign jurisdiction arising out of the same substratum of fact, but raising different issues between the same parties or involving different parties. The local proceedings must be considered in the context of the controversy as a whole, arising out of that substratum of fact in order to determine whether the continuation of the local proceedings would be vexatious or oppressive.
[14] Sakari Resources Ltd v Purvis [46].
So, if there were proceedings in the ACT arising out of the same 'substratum of fact,' the proceedings in Western Australia would need to be considered in the context of the controversy as a whole, in order to determine if the continuation of proceedings in Western Australia would be vexatious or oppressive. Here, there are no related proceedings in the ACT.
The onus of establishing that the proceedings are vexatious or oppressive in the Voth sense is on the University as the defendant.[15]

Conclusion on ground 4

[15] Sakari Resources Ltd v Purvis [47].

I am satisfied that in staying proceedings under s 16, her Honour erred in law. Her Honour should have applied the Voth test. On the material before me the University has not established that the continuation of the proceedings in Western Australia would be seriously and unfairly burdensome, prejudicial or damaging; so as to cause serious and unjustified trouble and harassment to the University. Ground 4 succeeds.

Was her Honour entitled to stay proceedings under s 20(3) of the SEPA?

The fact that Mr Hall has successfully established his complaint under ground 4 is not determinative of this appeal. That is because of my conclusion that it would separately have been open to her Honour to stay proceedings under s 20(3) of the SEPA. As noted her Honour referred to s 20(3) and the s 20(4) criteria, albeit when considering her powers under s 16 of the MCCPA.

Ground 5(a)(i): was the magistrate required to identify a particular court?

It is necessary to examine the various complaints set out under ground 5. Ground 5 relates to s 20 of the SEPA which provides as follows:
20 Stay of proceedings
(1)This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
(2)The person served may apply to the court of issue for an order staying the proceeding.
(3)The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. (again, my emphasis).
(4)The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)the place where the subject matter of the proceeding is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e)the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
…
(9)This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3).
(10)This section does not affect the operation of:
(a)the Jurisdiction of Courts (Cross‑vesting) Act 1987; or
(b)a corresponding law of a State.
I note that the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) does not apply here given that it is concerned (s 5(1)(a)) with proceedings then pending in a state Supreme Court.
Section 3 of the SEPA sets out the definitions of some terms used within that Act. Section 3(1) of the SEPA provides that those definitions apply 'unless the contrary intention appears.' Under s 3, court, except in pt 7, means:
A court of a State and includes an authority exercising the powers of such a court.
'Tribunal' means:
(a)a person appointed by the Governor of a State, or by or under a law of a State; or
(b)a body established by or under a law of a State
and authorised by or under a law of the State to take evidence on oath or affirmation, but does not include:
(c)a court; or
(d)a person exercising a power conferred on the person as a judge, magistrate, coroner or officer of a court.
By ground 5(a)(i) Mr Hall contends that it was not open to her Honour to have the requisite satisfaction required by s 20(3). That is because her Honour made no determination as to what court, other than the Magistrates Court of Western Australia would have jurisdiction.
At issue here is whether it was open to Her Honour to proceed in the following way. Firstly to decide whether it was appropriate for the matter to be heard within a court in the ACT as opposed to the Magistrates Court of Western Australia. Secondly to assume that a court of the ACT, would have the jurisdiction to determine the private dispute (as her Honour, correctly, in my view found it to be) between the parties.
In my view this issue is a matter of law and not of evidence. As a matter of law, given the amount of damages claimed the only court that would have jurisdiction in the ACT is the ACAT. That is because the claim here is for $24,555. Under s 266A of the Magistrates Court Act 1930 (ACT) as amended, the Magistrates Court in the ACT cannot hear disputes of less than $25,000. The ACAT is authorised under the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the CATA) and s 18 limits its jurisdiction to a $25,000 limit.
I am satisfied, as a matter of law, that in the event that the relevant criteria within s 20(4) was satisfied it would have been open to her Honour to conclude that a court in the ACT had jurisdiction to determine all the matters in issue between the parties. Ground 5(a)(i) fails.

Ground 5(a)(ii): the question of the status of the ACAT

I then turn to ground 5(a)(ii). Her Honour contemplated that if the matter was heard in the ACT, the ACAT would have jurisdiction. Mr Hall submits that ACAT is a tribunal not a court and so does not come within s 20. This ground will succeed if Mr Hall persuades me that the ACAT is not a court within the meaning of s 20(3).
This has been the most troublesome aspect of this appeal. Following the hearing before me on 4 November 2019 I reserved my decision. After reviewing the transcript, in combination with the written submissions, I concluded that the respondent's oral submissions did not deal with the issue of whether the definition of tribunal under s 3 of the SEPA, as set out above, means that the ACAT cannot be regarded as a court within the meaning of s 20(3).
Accordingly, I indicated that I would permit the respondent to file further written submissions confined solely to that point, with Mr Hall being permitted to file written responsive submissions. The University's submissions of 7 November 2019 were confined to the issue of the definition of tribunal under s 3 of the SEPA. Mr Hall's submissions of 19 November 2019 were not so confined.
As a result I permitted the University to file further submissions confined to the issue of whether the jurisprudence on the concept of 'a court of a State', as referred to by Mr Hall, bears upon the issue of whether ACAT is to be regarded as a court or as a tribunal.[16] The University filed further supplementary submissions on 27 November 2019. Mr Hall responded with further supplementary submissions of his own, dated 28 November 2019, although he did not have leave to do so. In those circumstances I convened a further hearing on 5 December 2019. Appropriately, the University did not oppose a retrospective grant of leave to Mr Hall to file further supplementary submissions and I received them accordingly.

A constitutional question?

[16] Appellant's submissions, dated 19 November 2019, pars 22 - 35.

A further complexity, however, emerged at that hearing. Counsel for the University formed the view that a constitutional question, potentially at least, arose in these proceedings, namely the meaning of 'court' within s 51(xxiv) of the Constitution. Further, the allied question of whether that meaning should be the same as the meaning given to 'court' for the purposes of ch 3 of the Constitution ('the judicature' s 71 ‑ s 80). The University assumed the responsibility for the issue of notices under s 78B of the Judiciary Act 1903 (Cth) which is, of course, a provision which enables the attorneys of the Commonwealth and the states and territories to be heard on any constitutional matters arising in any proceedings.
The matter then rested in limbo until the final hearing on 29 January 2020 when counsel for the University informed me that none of the Solicitor Generals for any of the states or territories of Australia, nor for the Commonwealth, intended to intervene in this matter. As of that date no communication had been received from the Solicitor General of New South Wales. Nothing was ever heard from New South Wales, and a deadline imposed on 29 January 2020 passed.

Issues identified by the court

Shortly before the 5 December 2019 hearing I had communicated with the parties, through my associate, in the following terms:
In the event that his Honour concludes that the learned magistrate had the power to stay proceedings under the SEPA, his Honour will wish to hear submissions on whether, in the particular circumstances of this case, it was open to the learned magistrate to do so, given (a) the definition of tribunal under s 3 of the SEPA and (b) the authorities identified at [22] – [35] of Mr Hall's supplementary written submissions of 19 November on the concept of 'a court of a State'.
In particular, at the hearing his Honour will request counsel for the respondent to address his Honour on the question of whether the criteria for distinguishing between a court and a tribunal articulated in the judgement of Trust Company of Australia Limited (Trading as Stockland Property Management) v Skiwing Pty Ltd(trading as Café Tiffany's) [2006] NSWCA 185; (2006) 234 ALR 398 per Spigelman CJ, should be employed in this case in determining whether the ACAT is to be regarded as a court or as a tribunal.
Secondly, and allied to the first request, whether there is any aspect of the decision of Ammann that would preclude adopting 'a Trust Company of Australia Limited approach' to the question of the status of ACAT.
Thirdly whether there is any aspect of the ALRC report, particularly at [178] to [194] that would suggest that adopting 'a Trust Company of Australia Limited approach' to the question of the status of ACAT is inappropriate.
Fourthly whether there is any aspect of the ALRC report, particularly at [178] to [194] that bears upon the interpretation of the definition of tribunal in section 3 of the SEPA.
These questions reflected my conclusion, not communicated to the parties at that point, that the learned magistrate did have the power to stay under s 20(3). Counsel for the University and Mr Hall each engaged these issues in their respective oral submissions. I will discuss the Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) case,[17] referred to by the parties as 'Skiwing' at [80] onwards.

The definitions under s 3

[17] Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185.

Mr Hall points to s 3 of the SEPA where it is stated what 'tribunal' means and provides that it does not include a court.
For its part the University initially relied upon the definition, also under s 3 of the SEPA, of a court as meaning an authority exercising the powers of a court of a state (such term embracing the ACT). Authority is separately defined under s 3 of the SEPA as meaning a judge, magistrate, coroner or officer of a court appointed or holding office under the law of a state.

ACT legislation

In its 27 November 2019 submissions, the university accepted Mr Hall's contentions that the ACT Magistrate's Court's jurisdiction is limited by s 266A of the Magistrates Court Act (ACT) and that the ACT Magistrate's Court and the tribunal do not share jurisdiction in respect of 'civil dispute applications' with a value of less than $25,000. Further that the term 'authority' as defined in s 3 of SEPA means that the University could not maintain, and withdrew, its submission[18] that the ACAT, when determining a civil dispute application, is an authority of a state, exercising the powers of a court of a state and is therefore 'a court of a State' and not a 'tribunal' within the meaning of s 3 of the SEPA.
[18] Respondent's submissions, 14 November 2019, par 9.
Part of the objects of the CATA are to provide for a wide range of matters arising under legislation to be resolved by the ACAT.[19]
[19] CATA s 6(a).
By s 16(b) a civil dispute application is defined widely and includes a damages application (as is the case here). A person may make a civil dispute application to the tribunal.[20] However, a civil dispute application cannot be made to the tribunal for an amount greater than the tribunal's jurisdictional limit (which is $25,000).[21] That prohibition is qualified by s 18(3) which provides that s 18 does not apply to (a) an application for a common boundaries determination; or (b) an application prescribed by regulation.
[20] CATA s 17.
[21] CATA s 18.
Section 21(b) permits the ACAT to hear a dispute where the claim exceeds $25,000 if the parties agree to such an application being decided by the ACAT.
By s 257 of the Magistrates Court Act (ACT) the Magistrates Court has jurisdiction to hear and decide any personal action at law if the amount claimed is not more than $250 000. I do not accept the University's argument[22] that the use of the word 'may' in s 17 of the CATA invalidates the appellant's submission that ACAT would have exclusive jurisdiction over his principal claim as distinct from the Magistrates Court. Where a person has a claim for damages in an amount less than $25,000 in a dispute in the ACT they have two choices; go to ACAT or do not proceed. If a person's claim is between $25,000 and $250,000 their recourse is to the Magistrates Court. As the University now accepts, to all intents and purposes ACAT would have exclusive jurisdiction in respect of Mr Hall's claim if it was to be determined in the ACT.
[22] Respondent's submissions, 14 November 2019, par 7.

Section 22 (1) of the CATA provides that the ACAT has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the MCA (ACT) pt 4.2 (civil jurisdiction). Section 22 forms part of pt 4 entitled 'Civil Disputes'.
I do not accept Mr Hall's argument in his 19 November 2019 submissions that this subsection is to be regarded as a drafting device purely to ensure that the ACAT can hear applications regarding boundary fence applications and/or with the amount at issue exceeds $25,000 but the parties have agreed under s 21(1) that the ACAT can hear the dispute.

'A Court of a State' – the Skiwing approach

In his 19 November 2019 submissions Mr Hall, engaged the jurisprudence on what is meant by 'a Court of a State' given the definition of 'Court' under s 3 of the SEPA.
Mr Hall submits that the Skiwing case, which I addressed in my questions prior to the 5 December hearing, is directly on point. In that case the respondent conducted a café in a shopping arcade owned by the appellant. A series of disputes in relation to the lease agreement came before the Retail Leases Division of the Administrative Decisions Tribunal. Amongst the claims brought in the tribunal by the respondent were claims for breach of s 52 of the Trade Practices Act 1974 (Cth). At first instance, the tribunal held that it had no jurisdiction to entertain a claim under that act. On appeal, the appeal panel of the tribunal held that the tribunal did have such jurisdiction, and remitted the matter for consideration at first instance. The appellant challenged that decision on appeal.
Spigelman CJ observed:[23]
… the common law concept of a 'court' in Australian practice provides the background to the adoption of the word in the Constitution.
[23] Skiwing [16].
His Honour continued:[24]
It is well established on the authorities that the word 'court' has a protean quality and takes its meaning from its context. Various forms of quasi‑judicial tribunals will fall within the concept of a 'court' as that word is used in particular statutes. In the present case the statute has a constitutional overlay.
[24] Skiwing [17].
His Honour noted[25] that as Ipp JA said in Orellana-Fuentes vStandard Knitting Mill Pty Ltd,[26] there are many institutions that exercise judicial powers but are well recognised not to be courts.
[25] Skiwing [20].
[26] Orellana-Fuentes vStandard Knitting Mill Pty Ltd (2003) 57 NSWLR 282 [39].
His Honour stated:[27]
The exercise of judicial power is a necessary but not a sufficient condition for the characterisation of a decision‑making body as a court, even in a context where there is no constitutional overlay. Furthermore, many powers may be either judicial or executive and their classification may depend on the nature of the body which exercises them. Such powers are neutral as indicia for the characterisation of the decision-maker.
[27] Skiwing [21].
His Honour referred to the holding in Shell Company of Australia Ltd v Federal Commissioner of Taxation,[28] where Viscount Dunedin, delivering the advice of the Privy Council on appeal from the High Court of Australia, said:[29]
The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial powers … In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a court in the strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subjects; (5) Nor because there is an appeal to a court; (6) Nor because it is a body to which a matter is referred by another body.
[28] Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, 543 ‑ 544.
[29] Skiwing [22].
As his Honour noted in Attorney-General v British Broadcasting Corporation,[30] Lord Edmund‑Davies added a list of further matters which were similarly not decisive:[31]
(1)The fact that the tribunal is called a court …
(2)The necessity of sitting in public.
(3)The fact that the tribunal has power to administer oath and hear evidence on oath.
(4)The fact that the prerogative writs may issue in relation to the tribunal's proceedings.
(5)The fact that absolute privilege against an action for defamation protects those participating in its proceedings.
[30] Attorney-General v British Broadcasting Corporation [1981] AC 303, 348.
[31] Skiwing [23].
Drawing in part on the observations of Ipp JA in Orellana-Fuentes,[32] his Honour set out[33] indicia in the Administrative Decisions Tribunal Act 1997 (Cth) (ADT Act) which operated in favour of the tribunal under consideration in that case, being regarded as a 'court of a State' and the indicia to the contrary.[34]

Can the Skiwing approach be applied in the present case?

[32] Orellana-Fuentes [39] - [40].

[33] Skiwing [26].

[34] Skiwing [27].

This is a pivotal issue in this case. The University submits that the SEPA was enacted by the Federal Parliament applying the legislative power conferred on it by s 51(xxiv) of the Constitution, which reads:
(xxiv)the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; …
The long title of the SEPA suggests that is so.
The University relies heavily on a submission that the decision of the High Court in Ammann v Wegener,[35] also referred to in my questions to the parties, is apposite here. Mr Hall submits that Ammann is authority for the scope of the Federal Parliament's power to legislate under s 51(xxiv) of the Constitution. It is not authority in respect of the appropriate definition of a court of a state generally or a court of a state under s 20(3) of the SEPA. Ammann is authority for the proposition that the legislative power of the Commonwealth under s 51(xxiv) has two limbs and the first limb, which relates to the service and execution throughout the Commonwealth of the civil and criminal process, is not curtailed or subject to the words courts of the state.
[35] Ammann v Wegener (1972) 129 CLR 415.
The parties developed their respective written submissions at the 5 December 2019 hearing.
I accept that the words 'court of a State' must be understood as a constitutional expression[36] and the phrase 'a court of another State' in s 20(3) is indistinguishable. As Spigelman J noted[37] Ammann is authority for the proposition that the reference to 'the courts of the States' in s 51(xxiv) may involve different considerations.[38]

Subsequent analysis of Ammann in the High Court

[36] Skiwing [44].

[37] Skiwing [44].

[38] Ammann (442) (Mason J).

Ammannwas considered by the High Court in Dalton v NSW Crime Commission.[39] In their joint judgment Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ noted that the appeal from the New South Wales Court of Appeal turned upon the validity of s 76 of the SEPA. This statute replaced the Service and Execution of Process Act1901 (Cth) (the 1901 Act). Section 76 of the SEPA empowers the Supreme Courts of the states and territories to grant leave to serve certain subpoenas outside the relevant state or territory.
[39] Dalton v NSW Crime Commission (2006) 227 CLR 490.
Their Honours noted[40] the respective definitions of tribunal and court under s 3 of the SEPA. Their Honours noted[41] that the primary declaratory relief sought by the appellant concerns the invalidity of s 76 of the SEPA. Their Honours found that the appellant failed to demonstrate that invalidity.
[40] Dalton v NSW Crime Commission [3].
[41] Dalton v NSW Crime Commission [20].
As noted in Aston v Irvine[42] the High Court said of s 51(xxiv) of the Constitution:[43]
The nature of this power, as well as the prior history of the subject to which it relates, provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State.
[42] Aston v Irvine (1955) 92 CLR 353.
[43] Dalton v NSW Crime Commission [23].
As noted later, in Ammann, Mason J remarked:[44]
The difficulties which had existed in the Australian colonies in the nineteenth century affecting the service or execution in a colony of process issued in another colony lent some force to the notion that the law of a State may not have made adequate provision for the issue of a warrant in circumstances where a subpoena or summons issued in that State was served in another State and was not complied with.
[44] Dalton v NSW Crime Commission [24].
Their Honours noted[45] that s 15(d) and s 15(f) of the Federal Council of Australasia Act 1885 (Imp) (the Federal Council Act) dealt separately with civil and criminal process. These two provisions were combined into the single paragraph (s 51(xxiv)) of the Constitution. Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding.
[45] Dalton v NSW Crime Commission [26].
Their Honours observed that in Ammann, the High Court held that the words 'of the courts' do not form part of the description of the subject matter in the paragraph so far as it concerns the civil and criminal process; the term 'process' is not governed by the words 'of the courts', and it is sufficient that the process in question be that of a state.[46]
[46] Dalton v NSW Crime Commission [30].
As noted in R v Murphy[47] the High Court analysed the federal law investing authority in the courts and magistrates of the states to commit for trial persons charged with offences against Commonwealth law. Such federal law was a law investing a state court with jurisdiction in a 'matter' arising under a law of the Commonwealth, within the meaning of s 77(iii) of the Constitution. The entire 'matter' comprised the commital proceedings and a subsequent trial.
[47] R v Murphy (1985) 158 CLR 596 [31].
Their Honours in Dalton quoted the holding of Gibbs J in Ammann that:[48]
It might be thought that the words 'courts of the States' in s 51(xxiv) include all bodies which are courts according to the law of the States, whether or not those bodies exercise judicial power. However, it is not in my opinion necessary to decide whether a magistrate in South Australia when holding a preliminary examination for the purpose of deciding whether a person charged with an indictable offence should be committed for trial, or issuing a summons or warrant for the purpose of procuring the attendance of a witness at such a preliminary examination, can be described as one of 'the courts of the States' within s 51(xxiv) of the Constitution. It is therefore unnecessary to consider whether the words 'the courts of the States' in that paragraph refer only to tribunals exercising judicial powers, or whether the provisions of Pt V of the Justices Act show that a magistrate holding such preliminary examination or issuing such a summons or warrant is not a court according to the law of South Australia.
[48] Dalton v NSW Crime Commission [33].
This was unnecessary because s 51(xxiv) enables laws to be made with respect to the service and execution of (1) the civil and criminal process of the states, and (2) the judgments of the courts of the states.
In AmmannBarwick CJ, McTiernan J, Menzies J, Walsh J, Stephen J and Mason J agreed with Gibbs J's construction of s 51(xxiv).
Their Honours in Dalton stated:[49]
The upshot of Ammannis what Wells J later called the 'medial conclusion', that there may be 'civil and criminal process' which is 'of the States', although not 'of the courts'. In so far as the ordinary meaning of the term 'process', discussed earlier in these reasons, is linked with litigation conducted in the courts, the Constitution speaks more broadly.
[49] Dalton v NSW Crime Commission [34].
As their Honours observed[50] the appellant in Dalton did not challenge the holding in Ammann respecting the construction of s 51(xxiv). He did not assert that the process spoken of must be that of a court of a state; it is enough that the process is that of a state.
[50] Dalton v NSW Crime Commission [35].
As set out in the decision of the NSW Court of Appeal under appeal in Dalton, Spigelman CJ referred to:[51]
the fact, established by Ammann, that the words 'of the courts' do not qualify the words 'civil or criminal process'. These words are at large, albeit in the immediate context of 'service and execution'. No authority has been cited to the Court which would suggest that these words, in such a context, should be confined to the determination of legal disputes or the enforcement of laws.
[51] Dalton v NSW Crime Commission [38].
Their Honours considered it an error, given Ammann, to treat the words 'civil' and 'criminal' as they appear in s 51(xxiv) as words of limitation or qualification, rather than of universal description. The correct approach asks whether the conferral by s 76 of power to give leave to serve a subpoena outside the state is a law with respect to the service of the 'process' of that state, in the constitutional sense of that term.[52]
[52] Dalton v NSW Crime Commission [39] - [40].
The construction of s 51(xxiv) given in Ammann qualifies any ordinary meaning of 'process' which links it to the conduct of litigation in the courts.[53]

Approach of Kirby J to Ammann in Dalton

[53] Dalton v NSW Crime Commission [48].

Kirby J joined in the orders made by the plurality but expressed some considerable disquiet with the holding in Ammann.
His Honour thought that three constitutional issues were potentially presented by this appeal. The first was whether the SEPA is invalid because the only provisions that it may make for service and execution throughout the Commonwealth of 'civil and criminal process' is for the 'process' of 'the courts of the States' and hence not the 'process' of a defined non‑court 'tribunal', such as the Commission. Secondly, the consequences if one was to assume (as authority suggests) that the 'civil and criminal process' referred to in s 51(xxiv) of the Constitution is not confined to that of 'the courts of the States', but is disjunctive and freestanding.[54]
[54] Dalton v NSW Crime Commission [71].
His Honour considered there to be significant arguments, never satisfactorily resolved by this court, for confining the power in s 51(xxiv) of the Constitution to 'civil and criminal process … of the courts of the States'. However, this was not the present doctrine of this court. In his appeal, the appellant did not challenge the present doctrine. The first issue should therefore be assumed against him.[55]
[55] Dalton v NSW Crime Commission [72].
His Honour noted[56] that in the ALRC report the authors refer to alternative approaches to the meaning of s 51(xxiv) in terms that were repeated by Mason P in the Court of Appeal. It is possible to construe this power in two ways.
[56] Dalton v NSW Crime Commission [77].
A narrow view which would read the power as 'the civil and criminal process, and the judgments, of the courts of the States'. On this interpretation the power would be confined to court process alone. Or, a broad view which would read the power as 'the civil and criminal process, and the judgments of the courts, of the States'. On this view Parliament could legislate with respect to process that was not court related.
As Kirby J noted[57] in Aston v Irvine (relied upon in Ammann), this court appeared to prefer the broad meaning. His Honour, then said this:[58]
79Whether the remarks in Aston could be treated as obiter dicta or not, the later decision in Ammann contains a number of observations endorsing the broad view of the meaning of s 51(xxiv). Thus, Gibbs J said:
'[I]n s 51(xxiv), which empowers the Parliament to make laws with respect to 'the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States', the word 'process' is not governed by the words 'of the courts'; those words refer only to 'judgments'. In other words, s 51(xxiv) enables laws to be made with respect to the service and execution of (1) the civil and criminal process of the States, and (2) the judgments of the courts of the States.'
80In Ammann, Walsh J and Stephen J agreed in the reasons of Gibbs J and with the orders that he proposed. Somewhat similar opinions on the ambit of the power appear in the reasons of Menzies J and of Mason J. Although he dissented in the result, Barwick CJ expressed a like view on the question whether the words 'of the courts' in s 51(xxiv) formed part of the description of the subject matter 'so far as it concerns the civil and criminal process'. In Barwick CJ's view '[t]hose words … form part of the description of the other section of the subject‑matter of the paragraph, namely, the judgments of the courts of the States'. The result is that the reasoning in Ammann resists any reconfiguration of the operation of the closing phrase of s 51(xxiv) of the Constitution.
81… Despite the present state of authority there are, as it seems to me, significant textual, contextual and other arguments against the court's doctrine as it now appears to be established.
[57] Dalton v NSW Crime Commission [78].
[58] Dalton v NSW Crime Commission [79] - [81].
Kirby J concluded:[59]
it will be obvious that I have distinct reservations about the interpretation of s 51(xxiv) of the Constitution that this Court accepted in Aston and in Ammann.
[59] Dalton v NSW Crime Commission [94].
However, as his Honour explained:[60]
Because the appellant did not argue against the approach adopted in Astonand Ammann, this appeal substantially took the course of accepting that approach, particularly as expressed in the reasons of Gibbs J in Ammann. This is not, therefore, a suitable occasion in which to give effect to a contrary opinion. Whatever reservations I may feel concerning the interpretation of s 51(xxiv) adopted before this case (and as to the necessity and operation of the remarks expressed having regard to the identity of the State 'court[]' in each case issuing process for execution interstate) the proper course is for me to accept the present doctrine, having voiced my doubts about it.

Western Australian cases dealing with whether a body is a court or a tribunal

[60] Dalton v NSW Crime Commission [96].

As Quinlan CJ recently noted in GS v MS,[61] the Court of Appeal in this state has previously held that the (WA) State Administrative Tribunal (SAT) is not a court of a state.[62] Similarly, in Burns v Corbett[63] the High Court proceeded on the undisputed basis that the New South Wales Civil and Administrative Tribunal (NCAT) was not a court of a state.
[61] GS v MS [2019] WASC 255 [23].
[62] Mustac v Medical Board of Western Australia [2007] WASCA 128 [48] (Martin CJ, Wheeler & Buss JJA agreeing).
[63] Burns v Corbett (2018) 353 ALR 386.
In Mustac Martin CJ observed that the SAT (WA) is an administrative tribunal, not a court. His Honour held:[64]
It is obviously bound to apply the law of the State. Not only is that proposition obvious, but it is inherent in sections such as s 59 and s 105 of the SAT Act, which deal with the resolution of questions of law. The law of the State is enunciated by the courts of the State, including the Supreme Court and the High Court. When questions of law arise for determination in the Tribunal, the Tribunal is required to apply the law as enunciated by the State courts and the High Court, at least by any court in the appellate structure above the Tribunal.
[64] Mustac v Medical Board of Western Australia [48].
In applying that holding in GS v MC Quinlan CJ noted that many of the features of the SAT that are intended to facilitate the effective exercise of its jurisdiction (including specialist lay membership, holding office for fixed terms) belie its characterisation as a court.

Of course, neither GS v MC nor Mustacare directly applicable to the question of whether a body which is described as a tribunal is nonetheless a court of a state as that term appears in s 20(3) of the SEPA, particularly where that Act provides that 'tribunal' does not include 'court.' GS v MC, being a single judge decision, albeit of the chief justice, is not in fact binding upon me, contra par 30 of Mr Hall's 28 November 2019 submissions, but it is of course instructive and persuasive.

Other cases on this issue

Similarly, in Attorney General (NSW) v Gatsby[65] the Court of Appeal in NSW noted that most members of the tribunal under consideration in that case 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'.[66]
[65] Attorney General (NSW) v Gatsby [2018] NSWCA 254.
[66] Attorney General (NSW) v Gatsby [181] ‑ [192] (Bathurst CJ); [197] (Beazley P); [198], [201] ‑ [205] (McColl JA); [223] ‑ [228] (Basten JA); [279] (Leeming JA).
Finally counsel for the University properly drew my attention to an authority to the contrary, Academy of Celebrancy Australia v Besso,[67] but respectfully submitted that this decision is not binding on me (which it is not) and that it was, in any event, wrongly decided.
[67] Academy of Celebrancy Australia v Besso [2009] VCAT 689.
In that case, Vice President Judge I J K Ross relevantly held:[68]
Clearly the intention of the SEPA is that tribunals and courts are to be recognised as two different types of institutions. This is evident both from the definitions of the relevant terms and the fact that the 'Service of process of tribunals' is dealt with in Part 4 and 'Service of process in civil and criminal proceedings, is dealt with in Part 2.

Conclusion on this issue

[68] Academy of Celebrancy Australia v Besso [24].

I am not satisfied that Ammann assists the respondent as it contends. Ammann was dealing with a different question and it has not been free of controversy. I do not consider that either Ammann or the ALRC report preclude the employment of the Skiwing criteria in determining whether a body is a court or a tribunal for the purposes of s 20(3). I am fortified in that conclusion by the fact that the federal parliament distinguished, quite sharply, between courts and tribunals in s 3 and there is no warrant for not applying those respective definitions to s 20(3).

Applying the Skiwing criteria

As I have noted Spigelman CJ firstly considered the indicia that suggested that the tribunal was a court of a state. First, his Honour noted that the tribunal exercises the judicial power of the state in the performance of a number of its statutory functions, including under the Retail Leases Act. In my view that does not apply to the ACAT which was established by the CATA to 'resolve issues arising under certain legislation, and for other purposes'.[69]
[69] See title of the CATA and s 6(a).
The president of the tribunal must be a judge and other judges may be appointed. That does not apply to the ACAT.
Deputy presidents and non‑presidential judicial members must either have held judicial office or be legal practitioners of seven years standing. That does not apply to the ACAT. Indeed, under the ACAT regulations, more than half of the tribunal is to be made up of non‑legally trained appointees.
The tribunal is expressed to have a 'jurisdiction'. That applies to the ACAT: s 22 of the CATA which gives the ACAT the same jurisdiction and powers in relation to civil dispute applications as the Magistrates Court.
The tribunal's procedure is expressed in terms of a 'parties to proceedings'. That applies to the ACAT.[70]
[70] Section 22K and s 22R.
The tribunal may compel a person to attend to give evidence or produce documents. That applies to the ACAT.[71]
[71] Section 41.
The tribunal may examine witnesses and compel answers. That applies to the ACAT.[72]
[72] Section 41(4)(b).
The tribunal may award costs. There are limited powers to ACAT in ordering costs.[73]
[73] Section 48 and s 49.
The tribunal may make rules in relation to its practice and procedure. That applies to the ACAT.[74]
[74] Section 24(1).
There is a right of appeal from an appeal panel of the tribunal to the Supreme Court on a question of law. By s 84(1), if the ACAT considers that a question of law that arises in considering an application or an appeal raises an issue of public importance, the tribunal may refer the question to the Supreme Court. By s 86(2) a party to an application in relation to a review of a decision under the Heritage Act 2004 (WA), the Planning and Development Act 2007 (ACT) or the Tree Protection Act 2005 (ACT) may appeal to the Supreme Court on a question of law from the original decision of the ACAT.
A legal practitioner or witness appearing at the tribunal has the same protection and immunity as if appearing in the Supreme Court. That applies to the ACAT.[75]
[75] Section 41A.
An order for payment of money, other than penalty, upon certification by the registrar, may be filed in a court and operates as a judgment of that court for a debt of that amount. Further, a penalty ordered to be paid may be registered in a court as a judgment debt and is enforceable accordingly. By s 71(2) a money order or non‑money order made by the ACAT is taken to be an enforceable order of the appropriate court in which it is filed for the purposes of the Court Procedures Rules 2006 (ACT), pt 2.18 (Enforcement).
In addition, I note that by s 70 a proceeding before the ACAT is a legal proceeding for the Criminal Code, ch 7 (Administration of justice offences).
Spigelman CJ then turned to a number of non‑exclusive indicia operating against the proposition that the tribunal in Skiwing was a 'court of a State', again drawing upon Orellana-Fuentes.[76]
[76] Orellana-Fuentes [42] - [51].
The tribunal is not called a court. That applies to the ACAT.
The members of the tribunal are appointed for a renewable term of three years. By s 98(1) the appointment of a person as a presidential member under s 94(1) is for a term of seven years. By s 8(4) the appointment of a person as a non‑presidential member under s 96(1) is for a term of five years.
Non‑judicial members do not have to have legal qualifications.[77] That applies to the ACAT. Regulation 6 of the ACT Civil and Administrative Tribunal Regulation 2009 (the Regulations') dictates how the Attorney General may appoint non‑presidential members, including for a minimum number of legal practitioners as members as well as members of other professions, including health practitioners and individuals with qualifications in business, consumer affairs and financial brokerage as examples.
[77] Orellana-Fuentes [43].
Non‑presidential judicial members and non-judicial members are appointed by the Minister. That applies to the ACAT. Section 96 of the CATA gives the power to appoint non‑presidential members solely to the Attorney General.
Judicial officers may be appointed to act as a member by the president.[78] That does not apply to the ACAT. Section 94 of the CATA gives the power to appoint the president of the tribunal and other presidential members to the executive, with the person to be appointed either to be a magistrate or eligible to be a magistrate.[79] The only appointment the president of the ACAT may make is that of an assessor. An assessor is to provide specialist or technical advice to a tribunal for an application, if asked by the tribunal.[80]
[78] Orellana-Fuentes [42].
[79] Section 94(3)(a).
[80] Section 97(3).
A substantial proportion, indeed on the material before the court the majority, of the proceedings in the tribunal do not involve the exercise of judicial power. I consider that the same applies to the ACAT.
In merits review cases, the tribunal is required to give effect to government policy. That consideration is inapplicable here.
A member, other than the president, may be removed by the Governor for incapacity, incompetence or misbehaviour. A divisional head may be removed from that office by the Governor. Under s 99(1) the executive may end a person's appointment as a non‑presidential member for misbehaviour, for physical or mental incapacity, if the incapacity affects the exercise of the person's functions; or for failure to disclose a material interest. The Act does not provide for the removal of presidential members.
The tribunal must refer any issue of contempt to the Supreme Court. That consideration is inapplicable here.
The tribunal has no express power to prevent abuse of its process.[81] By s 32(1)(c) the ACAT can dismiss or strike out an application that is an abuse of process.
[81] Batistatos v Newcastle City Council (2006) 226 CLR 256.
The act under consideration in Skiwing the ADT Act contains no provision for enforcement of an order of the tribunal, other than an order for payment of money under s 82 and s 82A. It appears that such orders can only be enforced by contempt proceedings in the Supreme Court. So far as the ACAT is concerned, by s 74(1) a party to an application must not, without reasonable excuse, fail to comply with an ACAT order.
Proceedings for an offence against the ADT Act are instituted in the Local Court. Under s 69A 'appropriate court' means:
if the amount payable under an enforceable money order or the form of relief under an enforceable non-money order is within the Magistrates Court's jurisdiction—the Magistrates Court;
or (b) for any other enforcement proceeding—the Supreme Court.
An assessor, who is not a member of the tribunal, may determine proceedings, if the parties consent to such a course or if the case belongs to a class prescribed by regulations. That does not apply to the ACAT.
His Honour regarded the two sets of considerations as being more finely balanced in the Skiwingcase than in Orellana-Fuentes. His Honour concluded that, in order for federal jurisdiction to be permissibly conferred upon it, a 'court of a State' must - exclusively, or at least predominantly - be constituted by judges. That is not a criteria that I must have regard to in the present case as there is no question of federal jurisdiction being conferred upon ACAT.
His Honour observed[82] that does not mean that a tribunal must be called a court, or that the judicial officers must be called judges, rather than, say, 'magistrates'. The process of characterisation involves a matter of substance, not form. Nevertheless, the use or absence of the word 'court' in the constitutive statute is indicative.[83]

Conclusion on ground 5(1)(a)(ii)

[82] Skiwing [50].

[83] Skiwing [51].

Applying, as I do, the Skiwing criteria, having regard, in particular to the lack of security of tenure of ACAT members and the substantial proportion of non‑legally qualified members, I am not satisfied that ACAT is a court of a state within the meaning of s 20(3). ACAT is the only body within the ACT that could determine this particular dispute in the event that the ACT was the appropriate jurisdiction. Accordingly it was not open to her Honour to stay proceedings under s 20(3) of the SEPA.
Ground 5(a)(ii) therefore succeeds. That is sufficient for Mr Hall's appeal to succeed. However given that the remaining sub-particulars of ground 5 were fully argued I will deal with them for completion.

Ground 5 (b): the process of comparison

Without stating it expressly, the use of the phrase 'the appropriate court' implicitly connotes, in my view, a more appropriate court than the court that proceedings were issued in, namely the Magistrates Court of Western Australia. It was for the University to satisfy her Honour that it was more appropriate for the matter to be dealt with in a court in the ACT then the Magistrates Court of Western Australia. In considering that issue her Honour was required to have regard to all relevant factors set out in s 20(4). By ground 5(b) it is asserted that her Honour did not do so. Her Honour referred to s 20(4) in its entirety[84] and understood that the criteria thereby specified were not exhaustive.[85]
[84] ts 9 - ts 10.
[85] ts 12.
Her Honour gave an ex tempore judgment which occupied 13 pages of transcript. Her Honour set out the relevant background and reasons for granting a stay.[86]
[86] ts 9 - ts 10, ts 12 - ts 14.
In Yilmaz-v- Berecz[87] Le Miere J referred to the relevant authorities on the issue of scrutinising reasons given by a magistrate. His Honour referred[88] to the holding of Martin CJ in Strahan v Brennan,[89] with which I respectfully agree.
[87] Yilmaz-v- Berecz [2016] WASC 192.
[88] Yilmaz-v- Berecz [19].
[89] Strahan v Brennan [2014] WASC 190 [90] ‑ [92].
As was the case in Yilmaz v Berecz[90] her Honour's reasons must be seen in the context of the materials before her that preceded her reasons. The materials before her Honour included written submissions and affidavits from the parties with annexures.

The matters to be considered under s 20(4)

[90] Yilmaz v Berecz [20].

Her Honour was required by s 20(4)(a) to consider the place of residence of the parties and of the witnesses likely to be called in the proceeding. Her Honour considered the place of residence of Mr Hall and of the witnesses he would be likely to call.[91] The university is obviously located in the ACT. Her Honour considered the place of residence of witnesses it would be likely to call.[92] Mr Hall had provided to her Honour detailed written submissions on this factor.[93]
[91] ts 12.
[92] ts 13.
[93] Further submissions of 6 August 2019, pars 17 - 24.
Her Honour was required by s 20(4)(b) to consider the place where the subject matter of the proceeding is situated. Her Honour concluded that there was a preponderance of factors linking the dispute with the ACT including the subject matter of the dispute.[94] Her Honour did refer to Mr Hall's submissions that he was ordinarily resident in Western Australia when the alleged damages occurred and that the degree was conferred upon him when he was resident in Western Australia. Her Honour concluded that there was no evidence in any of the affidavit material to that effect.[95]
[94] ts 14.
[95] ts 12 - ts 13.
In respect of s 20(4)(b) in her affidavit affirmed on 21 May 2019 Ms Kilpatrick asserts that neither Mr Hall nor the University are resident in Western Australia. Mr Hall appears to reside and work in New South Wales as per his attached workplace profile and the address list of service matches his workplace. The University campus is in the ACT and does not have offices in Western Australia. I have already referred to Mr Hall's 12 June 2019 affidavit. In its further submissions of 16 July 2019, the University accepted that at some point in the past Mr Hall resided in Western Australia and that he was refused admission in Western Australia. The University noted that Mr Hall did not dispute its assertion that he resides and works in Sydney, New South Wales. Mr Hall's further submissions of 6 August 2019[96] including cross‑references to annexures to an affidavit affirmed by a Ms Sainsbury engage this criteria.
[96] Paragraphs 25 - 28.
Her Honour was required by s 20(4)(c) to consider the financial circumstances of the parties, so far as the court is aware of them. Her Honour referred[97] to the fact that Mr Hall works and appears to reside in New South Wales so that the cost associated with attending proceedings in the ACT would seemingly be less than travelling to Western Australia. Mr Hall's further submissions of 6 August 2019 at engage this criteria.[98]
[97] ts 13.
[98] Paragraphs 29 - 31.
Her Honour was required by s 20(4)(d) to consider any agreement between the parties about the court or place in which the proceeding should be instituted. There was no evidence before her Honour of any such agreement. Mr Hall does not suggest otherwise in his 6 August 2019 submissions.
Her Honour was required by s 20(4)(e) to consider the law that would be most appropriate to apply in the proceeding. Her Honour had concluded[99] that the claim as framed by Mr Hall is arguably a private law claim seeking as it does damages for the loss is alleged to have been suffered by Mr Hall arising from the representations made by the University. Her Honour concluded that the dispute is justiciable by a court which has jurisdiction to determine claims for damages and loss on the grounds alleged by Mr Hall. There was no material before her Honour to suggest that when it comes to adjudicating the merit of a claim for damages in the sum of $24,000 for an alleged misrepresentation that the law as it applies in Western Australia would be more appropriate than the law in the ACT or visa versa. Mr Hall's further submissions of 6 August 2019[100] including cross‑references to annexures to an affidavit affirmed by Ms Sainsbury engage this criteria.
[99] ts 12.
[100] Paragraph 32.
Her Honour was required by s 20(4)(f) to consider whether a related or similar proceeding has been commenced against the person served or another person. There was no evidence before her Honour of any such proceeding. Mr Hall accepts that to be so in his further submissions of 6 August 2019.[101]

Conclusion on ground 5(b)

[101] Paragraph 33.

I am quite satisfied that her Honour considered all relevant criteria under s 20(4).

Grounds 5 (c) and (d): evidence before the magistrate that Mr Hall ordinarily resided in Western Australia

With respect to her Honour's assessment that there was no evidence in any of the affidavit material to the effect that Mr Hall ordinarily resided in Western Australia when the alleged damages occurred, or that the degree was conferred upon him when he resided in Western Australia, Mr Hall submits that there was such material, at par 11 of his affidavit affirmed on 12 June 2019. This gives rise to two discrete sub‑particulars of ground 5 of appeal: grounds 5(c) and 5(d).
Paragraph 11 relevantly reads:
I was resident in Western Australia at the time of the damage occurred, as the defendant is aware. Part of my claim relates to payment for additional study I undertook at Murdoch University. In addition, the defendant mailed materials that form part of the claimed misrepresentations to me in Western Australia; I have sought admission to the legal profession in Western Australia; and I serve the defendant via post from Western Australia. Annexed and marked 'B' is a copy of an email confirming that university mailed documents to me in Western Australia; annexed and marked 'C' are emails to and from Ms Kilpatrick on 29 and 30 August 2017 regarding the substance of my claim.
Annexure B is an email from an administration officer at the University of Canberra dated 18 April 2016 enquiring of Mr Hall as to whether he would like his Dean's Certificate posted to his home address or the Legal Practice Board of Western Australia.
Annexure C is an email from Ms Kilpatrick dated 29 August 2017 at 11.34 am seeking clarification of what reply he was awaiting from the University. Mr Hall provided some clarification, particularly his complaint that no reply had been forthcoming regarding compensation for lost wages. By email dated 30 August 2017 at 11.17 am Ms Kilpatrick indicated that the university did not agree it was liable to pay damages for lost wages, but had made an offer to reimburse the fees here paid directly to Murdoch University to complete his qualifications.
I do not regard par 11, coupled with annexures B and C, as constituting evidence that Mr Hall ordinarily resided in Western Australia when the alleged damages occurred. Or that the degree was conferred upon him when he resided in Western Australia.
Grounds 5(c) and 5(d) fail.

The University's alternative position

Finally and alternatively, the University submits that it would have been open to the magistrate, given s 9(a) and s 29(1)(a) of the Local Court Act 2007 (NSW) to find that the appropriate forum is the New South Wales Local (NSW) Court, citing Seymour v Jaeger [2017] NSWSC 25 [35] (Fagan J) and Desmond v ACT Health (T/as the Canberra Hospital) [2017] NSWDC 263 (Neilson DCJ).

The orders that the District Court may make on the appeal if error is demonstrated are set out in s 43 of the MCCPA. By s 43(7)(a) the appeal court may vary a part of the lower court's judgment. The University is a sophisticated litigant by comparison with Mr Hall. It would have been open to the University to postulate the NSW Local Court as an alternative jurisdiction to the ACAT. It did not do so. In fact it did not raise this possibility until after the hearing of 4 November 2019. I decline to exercise my discretion to contemplate the NSW Local Court as a potentially suitable alternative court under s 20(3) of the SEPA.

Overall conclusion

In upholding ground 4, I determined that her Honour erred in staying proceedings under s 16 of the MCCPA. Further, in upholding ground 5(a)(ii), I concluded that it was not open to her Honour to stay proceedings under s 20(3) of the SEPA.
Mr Hall's appeal is allowed. As a consequence Mr Hall's action against the University will proceed in the Magistrates Court of Western Australia. I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
24 FEBRUARY 2020