Hanssen Pty Ltd v Owners of Strata Plan 58161 - [2024] WASCA 87

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HANSSEN PTY LTD -v- OWNERS OF STRATA PLAN 58161 [2024] WASCA 87
CORAM:   BUSS P
MITCHELL JA
HALL JA

HEARD:   8 FEBRUARY 2024
DELIVERED          :   29 JULY 2024
FILE NO/S:   CACV 29 of 2023
BETWEEN:   HANSSEN PTY LTD
Appellant
AND
OWNERS OF STRATA PLAN 58161
Respondent
THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT PRITCHARD
MR D AITKEN, SENIOR MEMBER
MS C CONLEY, MEMBER

Citation: OWNERS OF STRATA PLAN 58161 and HANSSEN PTY LTD [No 2] [2023] WASAT 7
File Number : CC 1949 of 2021

Catchwords:

Constitutional law - Judicial power - Federal jurisdiction - Whether State Administrative Tribunal has jurisdiction to determine a matter in which a building remedy order is sought under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether Tribunal proceedings concerned a matter arising under the Corporations Act 2001 (Cth) by reason of the incorporation of a party to the Tribunal proceedings under that Act - Whether the Tribunal proceedings concerned a matter arising under the Constitution or involving its interpretation - Whether appellant's constitutional submission as to the invalidity of a remedial order by the Building Commissioner was incapable on its face of legal argument - Whether constitutional submission about the jurisdiction of the Building Commissioner to make a building remedy order against a company incorporated under the Corporations Act formed part of the substantive matter before the Tribunal

Legislation:

Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 5, s 6, s 7, s 9, s 36, s 37, s 50, s 51, s 52, s 54, s 55
Commonwealth Constitution, s 75, s 76, s 77, s 109
Interpretation Act 1984 (WA), s 7
Judiciary Act 1903 (Cth), s 39(2)
State Administrative Tribunal Act 2004 (WA), s 85, s 105

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	M Sims SC
Respondent	:	G J Douglas
Intervener	:	C S Bydder SC and G Stockton

Solicitors:

Appellant	:	Hotchkin Hanly
Respondent	:	Douglas Cheveralls Lawyers
Intervener	:	State Solicitor's Office

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

AgriWealth Capital Ltd v Australian Financial Complaints Authority Ltd [2023] FCAFC 118; (2023) 299 FCR 319
Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350
Allianz Australia Insurance Ltd v Probuild Constructions (Aust) Pty Ltd [2023] NSWCA 56
Attorney General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83
Attorney General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315
Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136
Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Clarence City Council v The Commonwealth [2020] FCAFC 134; (2020) 280 FCR 265
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [No 3] [2021] FCA 1041; (2021) 156 ACSR 539
Fencott v Muller (1983) 152 CLR 570
Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45
GS v MS [2019] WASC 255; (2019) 344 FLR 386
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hafertepen v Network Ten Pty Ltd [2020] FCA 1456
Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24
In re Judiciary and Navigation Acts (1921) 29 CLR 257
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Legal Profession Complaints Committee v Lourey [2022] WASCA 114
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575
Lockyer v Citic Pacific Mining Management Pty Ltd [2022] FCA 1381; (2022) 297 FCR 151
Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287
Malecki v Macko [2022] FCA 766
Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360
New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Oliver v Nine Network Australia Pty Ltd [2019] FCA 583
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
Raghubir v Nicolopoulos [2022] FCAFC 97; (2022) 402 ALR 532
Re Australian Securities and Investments Commission; Ex parte Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) [No 2] (1997) 189 CLR 654
Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1
Seven Networks (Operations) Ltd v Cricket Australia [2021] FCA 1031; (2021) 393 ALR 53
Smith v National Australia Bank Ltd [2022] FCA 1186
South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; (2022) 407 ALR 187
Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191; (2023) 379 FLR 256

Contents

Summary

Statutory context

Making a complaint

Building remedy orders

Enforcement of orders

Avoidance of concurrent proceedings

Transfer of matters

Factual and procedural background

Status of the parties

Building remedy order of 7 August 2015

Strata Company's application under s 51 of the Act

The Building Commissioner's transfer application

Hanssen's interim application in the Tribunal

The Tribunal's decision

The appeal to this court

Constitutional context

Distinguishing between substantive and jurisdictional 'matters'

Identifying the 'matter'

Substantive and jurisdictional matters

The incompatibility principle

Need to separately characterise jurisdictional and substantive matters

The 'matters' in this case

Section 76(ii) of the Constitution

General principles

Hanssen's contentions

Authority

Disposition

Section 76(i) of the Constitution

Hanssen's constitutional submission

Merits of Hanssen's constitutional submission

Was the Tribunal exercising jurisdiction in a constitutional matter?

Orders

JUDGMENT OF THE COURT:

Summary

In 2010, the appellant (Hanssen), a registered building services provider, completed the construction of a residential apartment complex in Victoria Park. In 2014, the respondent (Strata Company) made a complaint about Hanssen's building services to the Building Commissioner. The complaint was made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act). On 7 August 2015, a delegate of the Building Commissioner made a building remedy order requiring Hanssen to remedy building services that had not been carried out in a proper and proficient manner or were faulty or unsatisfactory.
In August 2021, the Strata Company alleged that Hanssen had not carried out the remedial work. It applied to the Building Commissioner for a building remedy order revoking the 7 August 2015 order and ordering Hanssen to pay the Strata Company $7,627,477, being the estimated cost of remedying the building services (Strata Company's application). Because of the amount of the claim, the Building Commissioner sought the consent of the State Administrative Tribunal (Tribunal) for the transfer of the Strata Company's application to the Tribunal (transfer application). The Strata Company was a joint applicant on the transfer application.
In 2022, Hanssen applied to the Tribunal for an order that the Strata Company's application be dismissed on the basis that the Tribunal did not have jurisdiction to hear the matter (Hanssen's interim application). In the Tribunal, Hanssen contended that the Tribunal proceedings concerned a matter:
(a)arising under any laws made by the Parliament (namely, the Corporations Act 2001 (Cth)), within the meaning of s 76(ii) of the Constitution; and/or
(b)arising under the Constitution or involving its interpretation, within the meaning of s 76(i) of the Constitution.
In February 2023, the Tribunal dismissed Hanssen's interim application.[1] Hanssen now appeals to this court against those orders under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
[1] Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7 (primary decision).
It was, and is, common ground that the Tribunal is not a court of the State which can be invested with jurisdiction to determine matters identified in s 76 of the Constitution.
In the appeal, Hanssen first contends that its status as a corporation incorporated under the Corporations Act is sufficient to make any matter to which it is a party a matter arising under that Act. This is because the rights in issue in the matter depend upon federal law for their enforcement. Therefore, Hanssen contends that both the Tribunal and the Building Commissioner were purporting to deal with a matter arising under the Corporations Act, within the meaning of s 76(ii) of the Constitution. The Tribunal and the Building Commissioner both lacked jurisdiction to determine such a matter.
Hanssen's first contention is wrong. The mere fact that one of the parties to the dispute is a corporation incorporated under the Corporations Act is insufficient to characterise the dispute as a matter arising under the Corporations Act. The matter before the Tribunal in the present case was not a matter arising under the Corporations Act, and so was not a matter referred to in s 76(ii) of the Constitution. Hanssen's assertion that the Building Commissioner was dealing with a matter arising under the Corporations Act is wrong for the same reason. Further, the Building Commissioner was not exercising judicial power.
Secondly, Hanssen says that, even if the submission that the Building Commissioner was dealing with a matter arising under the Corporations Act is wrong, the submission is not so untenable as to be incapable on its face of legal argument. Hanssen says that, as a result of this submission being genuinely made in the Tribunal, the matter before the Tribunal arose under the Constitution or involved its interpretation within the meaning of s 76(i) of the Constitution. The Tribunal therefore lacked jurisdiction to determine the matter.
Hanssen's second contention, if accepted, would have an extraordinary consequence. The Building Commissioner and Tribunal were not actually deprived of jurisdiction to make a building remedy order on the basis that they were dealing with a matter arising under the Corporations Act. In making a complaint to the Building Commissioner, the Strata Company sought relief by an avenue which was then available. It obtained relief from the Building Commissioner at a time when there was no suggestion that the dispute involved any matter in federal jurisdiction. Years later, Hanssen incorrectly asserted that the Building Commissioner invalidly purported to exercise federal jurisdiction in a matter arising under the Corporations Act. Hanssen says that its incorrect assertion that the matter is in federal jurisdiction has the self‑fulfilling effect of bringing the matter within federal jurisdiction as a matter arising under the Constitution or involving its interpretation. The Tribunal is therefore deprived of jurisdiction to determine the substantive dispute between the parties.
In our view, Hanssen's second contention is not established, and this extraordinary result does not follow.
In addressing Hanssen's second contention, it is necessary to distinguish between the substantive matter and the jurisdictional matter. The substantive matter concerns whether the building services were faulty or unsatisfactory, and the consequent rights and liabilities of Hanssen and the Strata Company. The jurisdictional matter concerns the identity of the bodies which have authority to determine the substantive matter. A genuinely raised jurisdictional matter which is not on its face incapable of legal argument by definition arises under s 76 of the Constitution or involves its interpretation. However, the mere existence of a controversy as to which bodies have jurisdiction to determine the substantive matter is insufficient to characterise the substantive matter as a matter arising under the Constitution or involving its interpretation. Hanssen's incorrect assertion that the substantive matter is in federal jurisdiction therefore does not have the self-fulfilling effect for which Hanssen contends. In determining the substantive matter, the Tribunal is not determining a matter arising under the Constitution or involving its interpretation.
Therefore, the appeal should be dismissed.

Statutory context

The following provisions of the Act are of central relevance in the present case.

Making a complaint

Section 5(1) of the Act, read with reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations), provides for a complaint about a regulated building service to be made by a person whose interests are being, or have been, adversely affected by the carrying out of the service. The complaint may be about a regulated building service 'not being carried out in a proper and proficient manner or being faulty or unsatisfactory'. The complaint is made to the Building Commissioner, which is an office established under s 85 of the Act.
After receiving a complaint, the Building Commissioner must decide whether, and to what extent, to accept or refuse to accept the complaint under s 7 of the Act. Where the complaint is accepted, s 9 of the Act requires the Building Commissioner to cause an investigation of the complaint to be carried out by one or more authorised persons. Section 10 of the Act requires the authorised person(s) to prepare a report of their investigation and give the report to the Building Commissioner. The report may include recommendations as to the manner in which the complaint should be dealt with. Section 11 of the Act requires the Building Commissioner to consider the report. Section 11 also empowers the Building Commissioner to take action which may include dealing with the complaint under s 37 or referring the complaint to the Tribunal under s 38 of the Act.
Section 6(1) of the Act provides that a building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates. One of the reasons why the Building Commissioner may refuse to accept a complaint is that it is made out of time.[2] If the complaint is accepted then the Building Commissioner must dismiss the complaint if it is made out of time.[3]

Building remedy orders

[2] Section 7(3)(c) of the Act.

[3] Section 11(3) of the Act.

Under s 37(1) of the Act, if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may deal with the building service complaint by making a building remedy order. Where the Building Commissioner refers a building service complaint to the Tribunal under s 38 of the Act, the Tribunal may make a building remedy order if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
A 'building remedy order' is defined by s 36(1) of the Act to consist of one of the following:
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or [Tribunal], as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
Under s 36(2) of the Act, a building remedy order may require that the order be complied with within a time specified in the order.
In these reasons, we will refer to an order of the kind referred to in s 36(1)(a) as a 'remedial order', and orders of the kind referred to in s 36(1)(b) and s 36(1)(c) as 'payment orders'.
Section 37(2) of the Act provides that, unless the respondent consents, the Building Commissioner cannot make a building remedy order requiring work to be done of a value estimated to exceed the prescribed amount, or requiring an amount exceeding the prescribed amount to be paid. The prescribed amount is currently $100,000.[4] In the case of the Tribunal, the only prescribed amount is for a building remedy order against a person who is not a registered building services provider.[5]

Enforcement of orders

[4] See s 37(3) of the Act. No greater amount has been prescribed by the Regulations.

[5] See s 38(2) and s 38(3) of the Act. The prescribed amount is currently $500,000.

Section 50 of the Act and s 85 of the SAT Act deal with the enforcement of payment orders. The person to whom payment is to be made may file a certified copy of the payment order, and the person's affidavit as to the amount not paid under the order, in a court of competent jurisdiction. On the filing of a certified copy of the payment order, the order is taken to be an order of the court and may be enforced accordingly.
Section 51 of the Act deals with the enforcement of a remedial order. It applies where the 'responsible adjudicator' is satisfied that the order has not been complied with or has been complied with in part only. If so satisfied, the responsible adjudicator, under s 51(2), may:
(a)revoke the order in relation to remedying the building service or the part in question; and
(b)make a building remedy order referred to in section 36(1)(b) or (c) in relation to that building service.[6]
'Responsible adjudicator' is defined by s 51(1) to be the Building Commissioner in the case of an order made by the Building Commissioner and the Tribunal in the case of an order made by the Tribunal. Section 51(6) relevantly applies s 37 and s 38 to the making of an order under s 51 of the Act.
[6] That is, a payment order.
Section 52 of the Act provides for the enforcement of an order of the Building Commissioner which is 'not an order requiring the payment of money or an order to which' s 51 applies. Therefore, s 52 does not apply to the enforcement of a remedial order. A complainant can only 'enforce' the Building Commissioner's remedial order by having the remedial order converted to a payment order under s 51 and then enforcing the payment order under s 50 of the Act.

Failure to comply with a building remedy order is an offence against s 53 of the Act.

Avoidance of concurrent proceedings

Section 54 of the Act deals with the avoidance of concurrent proceedings. It relevantly applies where a building service complaint is made. Under s 54(1):
the matter to which the complaint relates (whether as shown in the complaint or as emerging in the course of the determination of the complaint) is not, unless subsection (2) applies, justiciable by a court that would otherwise have jurisdiction to determine the matter.
In broad terms, s 54(2) applies where the matter was before the court when the complaint was made, the complaint is not dealt with on its merits, the matter is transferred to a court under s 55(3) or:[7]
as a result of judicial review, a determination of the complaint is quashed or declared invalid on the ground that there was not jurisdiction to deal with the complaint under this Act.

Transfer of matters

[7] Section 54(2)(f) of the Act.

Section 55(1) of the Act relevantly provides for the Building Commissioner to transfer a matter that the Building Commissioner has decided to deal with under s 37, or that is before the Building Commissioner under s 51, to the Tribunal. Such a transfer may only be made with the consent of the Tribunal. Section 55(3) relevantly provides:
If a matter that a court has jurisdiction to determine is the subject of a building service complaint … before the [Tribunal], the Tribunal may order that the matter be transferred to that court in accordance with the rules of the court.

Factual and procedural background

The following factual and procedural background is uncontroversial.

Status of the parties

Hanssen is a corporation which was, at all material times, taken to be incorporated under the Corporations Act.[8] It is a registered building service contractor and a 'registered building service provider' within the meaning of the Act.
[8] Section 1378 of the Corporations Act.
The Strata Company is a strata company established by the Strata Titles Act 1985 (WA) in respect of land at 8 Hordern Street in Victoria Park. In about 2010, Hanssen completed the construction of residential apartment buildings at the Hordern Street premises. That construction was a regulated building service, being a building service carried out by a registered building service provider, for the purposes of the Act.

Building remedy order of 7 August 2015

On 12 September 2014, the Building Commissioner accepted a complaint by the Strata Company. On 7 August 2015, a delegate of the Building Commissioner made a building remedy order under s 37 of the Act. The building remedy order was a remedial order which required Hanssen to remedy the building service which the delegate found was 'not being carried out in a proper and proficient manner or being faulty or unsatisfactory' at the Hordern Street premises. The building remedy order specified the remedial action to be taken in respect of 82 identified complaints. The building remedy order required that it be complied with within 90 days of the date of the order.[9]

Strata Company's application under s 51 of the Act

[9] Green AB 132 - 154.

The Strata Company's application on 5 August 2021 sought orders under s 51 of the Act:[10]
1.revoking the building remedy order of 7 August 2015; and
2.ordering that Hanssen pay the Strata Company $7,627,477, being the estimated cost of remedying the building services.
Reports attached to the Strata Company's application identified work required by the 7 August 2015 order which had not been done and estimated the cost of completing the unperformed work.
[10] Blue AB 52.
On 25 August 2021, the Building Commissioner wrote to the parties noting the Strata Company's application and requesting submissions from Hanssen.[11]
[11] Blue AB 320.
On 12 November 2021, the solicitors for Hanssen provided submissions to the Building Commissioner.[12] The solicitors identified a potential issue as to the validity of the 7 August 2015 order by reference to the fact that the Building Commissioner must have been satisfied that the value of the works did not exceed $100,000 but the claimed costs were $7,627,477. The letter indicated that Hanssen did not admit that the 7 August 2015 order was validly made. It also contended that, even assuming the validity of the order, Hanssen did not consent to, and the Building Commissioner therefore could not make, an order that Hanssen pay more than the prescribed amount of $100,000. Hanssen's solicitors did not raise any issue as to federal jurisdiction at that time.

The Building Commissioner's transfer application

[12] Blue AB 326 - 327.

On 26 November 2021, the Building Commissioner made the transfer application under s 55(1) of the Act. The transfer application sought the Tribunal's consent to transfer to the Tribunal the Strata Company's application under s 51 of the Act. The ground on which the Building Commissioner sought the Tribunal's consent was that the costs of the remedial works required were estimated to be well over $100,000.[13]

Hanssen's interim application in the Tribunal

[13] Blue AB 18 - 25.

On 10 January 2022, Hanssen's interim application in the Tribunal sought an order, pursuant to s 46 of the SAT Act, that the 'Applicant's application be dismissed'.[14] Hanssen's interim application identified the Strata Company as the applicant before the Tribunal, presumably relying on s 12 of the Act. In the grounds of its application, Hanssen in effect contended that:
1.because Hanssen was incorporated under the Corporations Act, the matter before the Tribunal arose under a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution; and
2.the Tribunal did not have jurisdiction to hear the matter as it was not a 'court' on which federal jurisdiction could be conferred under ch III of the Constitution.
[14] Blue AB 335 - 336.
By the time of the hearing before the Tribunal, Hanssen's arguments had been refined to assert that the matter before the Tribunal was in federal jurisdiction on two bases:[15]
1.The Tribunal's ability to make a monetary order against Hanssen which is capable of enforcement against it depends on Hanssen's legal status afforded by the Corporations Act. For that reason, the controversy between the parties is a matter arising under a law of the Commonwealth, for the purposes of s 76(ii) of the Constitution.
2.The Act is invalid to the extent that it purports to confer jurisdiction on the Building Commissioner (who is also not a court of a State) to determine the rights and liabilities of the parties in a dispute in which a corporation is a party. The advancement of this defensive argument as to the validity of the Act means that the Tribunal proceedings involve a matter arising under the Constitution or involving its interpretation for the purposes of s 76(i) of the Constitution.
Hanssen therefore contended that the matter fell within federal jurisdiction which, by virtue of s 77(iii) of the Constitution, may relevantly only be invested in a court of a State. As the Tribunal is not a court of a State, it has no jurisdiction to deal with the transfer application.
[15] See the Tribunal's summary of Hanssen's argument at primary decision [3] - [4].
The second basis on which the matter was said to be a matter identified in s 76 of the Constitution, noted at [36] above, appears to have been first raised somewhat obliquely in written reply submissions filed by Hanssen on 2 June 2022, which alleged invalidity of the 7 August 2015 order. Even at the initial hearing before the Tribunal on 21 June 2022, the focus of Hanssen's argument was that the matter was a matter arising under a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution. The hearing was adjourned to allow the Strata Company to consider its position and subsequently to await the decision of the Victorian Court of Appeal in Thurin v Krongold Constructions (Aust) Pty Ltd.[16] The argument based on s 76(i) of the Constitution only came into focus in submissions filed by Hanssen in relation to the decision in Thurin on 8 November 2022.

The Tribunal's decision

[16] Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; (2022) 407 ALR 187.

On 21 February 2023, the Tribunal made an order dismissing Hanssen's interim application.
The Tribunal recognised that it did not have jurisdiction to determine whether the matter before it was in federal jurisdiction.[17] However, the Tribunal held that it had the implied power to take steps to secure its own compliance with its duty to ensure that proceedings before it are within its jurisdiction to hear and determine.[18] The Tribunal must form an opinion - rather than a conclusion with legal effect - about the limits of its own jurisdiction, for the purpose of moulding its conduct to accord with the law.[19]
[17] Primary decision [11].
[18] Primary decision [12].
[19] Primary decision [14].
The Tribunal said that the proceeding as a whole would fall within federal jurisdiction if, first, the claim or defence was genuinely raised and, secondly, if the claim was not incapable on its face of legal argument.[20] The Tribunal accepted that Hanssen's constitutional submission was genuinely raised in response to the transfer application. However, the Tribunal in effect found that the constitutional submission was incapable on its face of legal argument.[21] Thus, the Tribunal was of the opinion that no question in federal jurisdiction arose in the proceeding.

The appeal to this court

[20] Primary decision [15].

[21] Primary decision [7], [46].

Hanssen now appeals to this court under s 105(1) of the SAT Act against the Tribunal's dismissal of its interim application. The question of law identified in Hanssen's grounds of appeal is whether Hanssen's interim application made the matter one of federal jurisdiction and so beyond the jurisdiction of the Tribunal.

Constitutional context

Under s 71 of the Constitution, the judicial power of the Commonwealth shall be vested in the High Court, 'such other federal courts as the Parliament creates' and 'such other courts as it invests with federal jurisdiction'. Section 75 of the Constitution defines the original jurisdiction of the High Court in identified matters. Section 76 provides for the matters in which Parliament may confer original jurisdiction on the High Court, including in any matter:
(i) arising under this Constitution, or involving its interpretation;
(ii) arising under any laws made by the Parliament[.]
Section 77 of the Constitution provides:
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i) defining the jurisdiction of any federal court other than the High Court;
(ii) defining 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;
(iii) investing any court of a State with federal jurisdiction.
In this context, the reference to jurisdiction is to the authority to adjudicate. State jurisdiction is the authority which State courts possess to adjudicate under the State Constitution and laws. Federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws. The authority to adjudicate comprised in the conferral of federal jurisdiction is authority to exercise, within the limits permitted by or under s 75, s 76 or s 77, the judicial power of the Commonwealth.[22]
[22] Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1 [50], [52].
Various structural implications have been drawn from these and other provisions of ch III of the Commonwealth Constitution with respect to the exercise of federal jurisdiction.
First, the Commonwealth Parliament lacks legislative power to confer the judicial power of the Commonwealth on bodies other than the courts referred to in ch III of the Constitution.[23]
[23] R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 269 - 270.
Secondly, the Commonwealth Parliament may only confer judicial power on the courts referred to in ch III in respect of the matters enumerated in s 75 and s 76 of the Constitution.[24]
[24] In re Judiciary and Navigation Acts (1921) 29 CLR 257, 265 - 266.
Thirdly, State Parliaments lack legislative power to confer jurisdiction on the High Court and other federal courts.[25]
[25] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511.
Fourthly, while State Parliaments may confer non-judicial functions on courts of the State, they lack legislative power to confer functions which deprive a Supreme Court of its defining characteristics as a Supreme Court or deprive another court of the State of its defining characteristic as a court.[26]
[26] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 [41], [63]; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [153]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [96].
Fifthly, State Parliaments lack legislative power to confer judicial power with respect to any of the matters identified in s 75 and s 76 of the Constitution on a body other than a court of a State.[27]
[27] Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 [1] - [2], [43], [45], [68] - [69], [119].
In the present case, it is common ground that the Tribunal is not a 'court of a State' within the meaning of s 77(iii) of the Constitution.[28] Therefore the Tribunal cannot be invested with jurisdiction to determine a matter identified in s 75 or s 76 of the Constitution.
[28] See GS v MS [2019] WASC 255; (2019) 344 FLR 386 [23].
It is also common ground that the making of a payment order by the Tribunal, either under s 38 or s 51 of the Act, involves the exercise of judicial power. That characterisation arises largely because of the provision for a payment order to be registered with a court and to take effect as a judgment of the court.[29] In the present case, the authority sought to be engaged in the Tribunal has the character of judicial power. Different issues, considered below, arise in relation to whether a remedial order made by the Building Commissioner involves the exercise of judicial power.
[29] See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 268 - 271.
Therefore, if the justiciable controversy in this case is a matter arising under the Constitution or involving its interpretation, or a matter arising under any laws made by the Parliament, State Parliament will lack legislative power to confer authority to adjudicate that matter on the Tribunal. Pursuant to s 7 of the Interpretation Act 1984 (WA), the Act and the SAT Act are to be read down so as to not authorise the Tribunal to adjudicate on those matters.[30]
[30] See Burns [64], [120]; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 [1].

Distinguishing between substantive and jurisdictional controversies

In this case, it is important to distinguish between substantive controversies which may be the subject of a proceeding in a court or tribunal and jurisdictional controversies concerning the authority of the court or tribunal to determine the substantive matter.

Identifying the 'matter'

It is established that the references to a 'matter' in ch III of the Constitution are not to a legal proceeding, but rather are to the subject matter for determination in a legal proceeding.[31] A 'matter' is 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.[32] The conferral of federal jurisdiction in a matter is the conferral of judicial power to determine the whole of the controversy. In Fencott,[33] the plurality noted:
What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
[31] In re Judiciary and Navigation Acts (265).
[32] Fencott v Muller (1983) 152 CLR 570, 603.
[33] Fencott (608), referred to with approval in CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339 [30].
In Re Wakim, Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing) explained that the references in Fencott to 'impression' and 'practical judgment' cannot be understood as stating a test that is to be applied. Their Honours said:[34]
What is a single controversy 'depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. There is but a single matter if different claims arise out of 'common transactions and facts' or 'a common substratum of facts', notwithstanding that the facts upon which the claims depend 'do not wholly coincide'. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are 'completely disparate', 'completely separate and distinct' or 'distinct and unrelated' are not part of the same matter. (citations omitted)
[34] Re Wakim [140].
The constitutional imperative to identify a 'matter' independently of proceedings for its determination was emphasised by the plurality in Palmer v Ayres:[35]
A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice'. (original emphasis) … It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. (emphasis added) What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. (citations omitted)
[35] Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 [26].
Similarly, the plurality in Citta Hobart said:[36]
A 'matter' referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated. (citations omitted) (emphasis added)

Substantive and jurisdictional controversies

[36] Citta Hobart [31].

As illustrated by the decision in Attorney General (NSW) v Commonwealth Savings Bank of Australia, a controversy about the jurisdiction of a particular forum to adjudicate upon a matter may itself constitute a matter arising under the Constitution.[37] In other cases, an asserted invalidity of a State law may arise for a reason other than a body's lack of authority to adjudicate on the matter. So, for example, in cases such as Citta Hobart, the claimed inoperability of the State law arose under s 109 of the Constitution by reason of alleged inconsistency with a law of the Commonwealth. In cases such as British American Tobacco Australia Ltd v The State of Western Australia,[38] a claim or defence depended on the invalidity of a law under constitutional provisions standing outside ch III of the Constitution.
[37] Attorney General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315.
[38] British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30 [39] - [43].

In our view, in identifying a matter arising under the Constitution or involving its interpretation, it is necessary to distinguish between:
1.jurisdictional controversies arising under ch III of the Constitution which concern the authority of a court or tribunal to adjudicate on a substantive controversy which is the subject of proceedings before that court or tribunal; and
2.substantive controversies about the validity of a law which do not concern the authority of a court or tribunal to adjudicate on the matter but rather concern the substantive rights, duties and liabilities at issue between the parties.
In either case there will be a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution. In the first class of cases, the matter will arise under s 75 to s 77 of the Constitution or involve the interpretation of those provisions. In the second class of cases, the matter will generally arise under a provision standing outside ch III of the Constitution (s 90 and s 109 in the examples given in [59] above). In the second class of cases, the whole of the substantive controversy which is the subject of the proceedings will generally be characterised as a matter identified in s 76(i) of the Constitution. However, this will generally not be so in the first class of cases.
A substantive controversy and a jurisdictional controversy will generally constitute separate matters. If it were otherwise, then any genuinely raised claim that the substantive controversy was within federal jurisdiction would, at least where the claim was not incapable on its face of legal argument, necessarily bring the substantive controversy within federal jurisdiction. A genuinely raised claim, not incapable on its face of legal argument, that a matter not otherwise identified in s 75 or s 76 of the Constitution was within federal jurisdiction would be self‑fulfilling, even if the claim was plainly incorrect.
Further, the established principle, noted at [54] - [58] above, is that a 'matter' is a justiciable controversy that is not dependent on the commencement of a proceeding in a forum in which the controversy might come to be adjudicated. The question of whether proceedings are commenced in court or before a tribunal which has jurisdiction to adjudicate upon the matter arises only on the commencement of the proceedings in the relevant forum. That counts in favour of generally characterising a controversy about the jurisdiction of the court or tribunal in which proceedings are commenced as distinct from the substantive controversy raised for determination in the proceedings. A jurisdictional controversy does not concern the rights, duties or liabilities at issue in the substantive controversy. Rather, the jurisdictional controversy will generally be concerned only with the forum in which the substantive controversy is to be resolved.
The distinction between the matter which was the subject of the primary proceedings and the matter concerning the jurisdiction of a court in the primary proceedings was drawn by the High Court in Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) [No 2].[39] In that case, the High Court had found the primary proceedings, in which relief was claimed under the Industrial Relations Act 1988 (Cth), to be outside the scope of the statutory jurisdiction of the Federal Court of Australia. Section 347(1) of the Industrial Relations Act provided that a party to a proceeding in 'a matter arising under this Act' should generally not be ordered to pay costs. In holding that s 347(1) did not apply to proceedings in the High Court, Brennan CJ, McHugh and Gummow JJ observed:[40]
In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court.
The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. (citation omitted)
Although the court was concerned with a statutory reference to a 'matter', it referred to the concept of 'matter' as explained in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett,[41] and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd.[42]

The incompatibility principle

[39] Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) [No 2] (1997) 189 CLR 654, 656 - 657.

[40] Re McJannet (657).

[41] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, 154.

[42] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 509.

A similar distinction between a matter which is the subject of a judicial proceeding and a controversy about the proceeding itself is drawn in the line of cases following Kable v Director of Public Prosecutions (NSW).[43] The question in those cases was whether a State Parliament had conferred a power on a State court which was repugnant to or incompatible with the court's exercise of the judicial power of the Commonwealth.[44] The premise on which that question was asked was that the performance of that function by the State court did not itself involve exercising the judicial power of the Commonwealth. Determining whether the State provision conferring the power was inconsistent with ch III of the Constitution necessarily involved the exercise of federal jurisdiction in a matter arising under the Constitution or involving its interpretation. Yet that fact has not generally[45] led to the conclusion that the whole of the proceeding in the State court involves the exercise of federal jurisdiction.
[43] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable v DPP).
[44] See, for example, Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [123] (Hayne, Crennan, Kiefel & Bell JJ).
[45] While Gageler J considered that the whole matter in Kable v DPP fell within federal jurisdiction in New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [76] - [77], the plurality in that case did not consider it appropriate to examine the question at [37]. See also the dissenting view of Dawson J in Kable v DPP (87).
The point noted in the previous paragraph is illustrated by the decision of the High Court in Condon. That case concerned a challenge to State provisions which empowered the Supreme Court of Queensland to declare certain organisations to be 'criminal organisations'. The High Court accepted that the function conferred on the Supreme Court was judicial in nature.[46] The High Court determined that the provisions were not repugnant to or inconsistent with the institutional integrity of the Supreme Court. However, the resolution of that constitutional matter did not mean that the judicial power of the Commonwealth was being exercised in the Supreme Court proceedings in which a criminal organisation declaration was sought. This is apparent from the observation of the plurality that:[47]
[T]he conclusions reached in this matter cannot be directly translated and applied to the exercise of the judicial power of the Commonwealth by a Ch III court. As pointed out by this Court in HA Bachrach Pty Ltd v Queensland [(1998) 195 CLR 547 [14]], the 'occasion for the application of Kable does not arise' if the impugned State law would not offend Ch III had it been enacted by the Commonwealth Parliament for a Ch III court. But because '[n]ot everything by way of decision-making denied to a federal judge is denied to a judge of a State', that a State law does not infringe the principles associated with Kable does not conclude the question whether a like Commonwealth law for a Ch III court would be valid. (some citations omitted)
The Supreme Court proceedings could only have been characterised as not involving the exercise of the judicial power of the Commonwealth if the matter as to the validity of the provisions conferring power on the Supreme Court was distinct from the matter to be determined in the proceeding under those provisions. If the two matters were regarded as merely aspects of a single justiciable controversy, then the whole of that controversy would bear the character of a matter arising under the Constitution or involving its interpretation.
[46] Condon [22] - [24] (French CJ), [142] - [143] (Hayne, Crennan, Kiefel & Bell JJ).
[47] Condon [126].
Similarly, in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police,[48] the plurality distinguished between the exercise of federal jurisdiction under s 76(i) in a challenge to the validity of State legislation which provided for a new species of judicial review of administrative action, and the exercise of State jurisdiction under that legislation.[49]

Separate characterisation of jurisdictional and substantive controversies

[48] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [8] - [9] (Gummow, Hayne, Heydon & Kiefel JJ).

[49] See also, to similar effect, South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 [90] (Gummow J).

Consistently with the approach taken in the above cases, the mere fact that a party to proceedings makes a genuine submission, not incapable on its face of legal argument, that the court is exercising federal jurisdiction is not sufficient to make the whole of the matter which is the subject of the proceedings a matter arising under the Constitution or involving its interpretation.

The 'matters' in this case

The justiciable controversy which is the subject of the Tribunal proceedings in the present case was accurately identified by Hanssen's submissions before the Tribunal in the following terms:[50]
The 'matter' to which this application relates is the whole of the justiciable controversy between the Strata Company and Hanssen as to whether the building services performed by Hanssen in respect of the Building were carried out in a proper or proficient manner, or whether those services were faulty or unsatisfactory, and what are the rights and liabilities of the parties as a result of the determination of that controversy.
We will refer to this matter, which concerns whether the building services were faulty or unsatisfactory and the consequent rights and liabilities of Hanssen and the Strata Company, as the 'substantive matter'.
[50] Respondent's submissions in support of its application dated 10 January 2022, filed in the Tribunal on 4 March 2022, par 39; appellant's supplementary submissions dated 3 May 2024, par 47.
Another controversy between the parties is whether the Tribunal and Building Commissioner lack jurisdiction to determine the substantive matter because it is:
1.a matter arising under the Constitution or involving its interpretation, within the meaning of s 76(i) of the Constitution; or
2.a matter arising under any laws made by the Parliament, within the meaning of s 76(ii) of the Constitution.
We will refer to this matter, which concerns the identity of the bodies which have authority to determine the substantive matter, as the 'jurisdictional matter'.
The jurisdictional matter, at least so long as it is genuinely raised and not incapable on its face of legal argument, is by definition a matter arising under s 76 of the Constitution or involving its interpretation. The Tribunal did not have jurisdiction to determine the jurisdictional matter, although it had the implied power to form an opinion about the limits of its own jurisdiction for the purposes of determining its own action.[51]
[51] Citta Hobart [24].
However, federal jurisdiction to determine the jurisdictional matter is conferred on this court by s 39(2) of the Judiciary Act 1903 (Cth) read with s 76(i) of the Constitution. This investment of federal jurisdiction includes appellate jurisdiction within the provisions made for it by this State's judicial system.[52] In any event, despite the description of proceedings under s 105 of the SAT Act as an 'appeal', they involve the exercise of original jurisdiction in the nature of judicial review rather than appellate jurisdiction.[53] The investiture by s 39(2) of federal jurisdiction on this court 'within the limits of' its jurisdiction encompasses an appeal on a question of law under s 105(1) of the SAT Act which involves a matter arising under the Corporations Act or arising under the Constitution or involving its interpretation.
[52] Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287 [9].
[53] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ); Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [125].

Section 76(ii) of the Constitution

We turn to consider the first basis on which Hanssen contends the Tribunal proceedings involved a matter identified in s 76 of the Constitution. Hanssen contends that judicial proceedings brought against a company incorporated under the Corporations Act necessarily concern a 'matter arising under any laws made by the Parliament' within the meaning of s 76(ii) of the Constitution. On that basis, Hanssen contends that the proceedings before the Tribunal concerned a matter identified in s 76 of the Constitution, and jurisdiction to determine that matter could not be conferred on the Tribunal.

General principles

The meaning of the phrase 'matter arising under any laws made by Parliament' was explained by Latham CJ in Ex parte Barrett:[54]
[A] matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. (emphasis added)
In the present case, Hanssen relies on the second limb of this passage, contending that the right or duty in issue in the present case depends on the Corporations Act for its enforcement.
[54] Ex parte Barrett (154).
Latham CJ's observations in Ex parte Barrett have been approved by the High Court, including in LNC Industries Ltd v BMW (Australia) Ltd,[55] Re McJannet,[56] and CGU Insurance.[57] However all of those cases were concerned with a situation where the right or duty in question owed its existence to federal law, rather than a right or duty which depends on federal law for its enforcement.[58]
[55] LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581.
[56] Re McJannet (656 - 657).
[57] CGU Insurance [28].
[58] For a recent discussion as to when contractual rights of parties 'owe their existence' to the Corporations Act, cf AgriWealth Capital Ltd v Australian Financial Complaints Authority Ltd [2023] FCAFC 118; (2023) 299 FCR 319 [21] ‑ [37].
An example of a right which depends on federal law for its enforcement is a right conferred by a Commonwealth law to enforce an arbitral award. Proceedings for the enforcement of an arbitral award under a Commonwealth law have been held to concern a matter arising under a law of the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution.[59] Similarly, proceedings for a freezing order in relation to a prospective judgment of a foreign court were held to concern a matter arising under a law of the Commonwealth Parliament for that purpose, on the basis that the prospective enforcement process to be protected by the freezing order depended on the Foreign Judgments Act 1991 (Cth).[60]

Hanssen's contentions

[59] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 [2], [52].

[60] PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1 [55].

Hanssen contends that the rights in issue in the Tribunal proceedings depend upon federal law for their enforcement on the following basis.
Hanssen says that a building remedy order is an order that a 'person who carried out a regulated building service' remedy the building service or pay costs or compensation. The term 'person' is defined by s 5 of the Interpretation Act to include a 'company, or association or body of persons, corporate or unincorporate'.
While Hanssen was incorporated under State law before the commencement of the Corporations Act, after the commencement of that Act Hanssen's continued existence as a corporation depends on s 119 and s 1378 of the Corporations Act. Hanssen gains the legal capacity and powers of an individual under s 124(1) of the Corporations Act. Hanssen therefore says that the enforcement of a building remedy order against it, which depends on its corporate status, depends on these provisions of the Corporations Act. Therefore, the justiciable controversy as to whether a building remedy order should be made against Hanssen is a matter arising under the Corporations Act. That is so even though there is no controversy as to Hanssen's corporate status.[61]

Authority

[61] See respondent's submissions in support of its application dated 10 January 2022, filed in the Tribunal on 4 March 2022, pars 41 - 48. Hanssen notes that in TCL and PT Bayan the enforcement of the judicial orders was not controversial.

The genesis of Hanssen's argument is the decision of Lee J, sitting as a single judge of the Federal Court of Australia, in Oliver v Nine Network Australia Pty Ltd.[62] In that case, federal jurisdiction was found to exist for other reasons, so the following comments were obiter. Further, Lee J did not go beyond identifying the proposition as arguable, and so did not finally determine any issue. In the course of illustrating the breadth of federal jurisdiction, his Honour observed:[63]
It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the [Judiciary Act]. Chapter 2B of the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay's Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2A.2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth.
[62] Oliver v Nine Network Australia Pty Ltd [2019] FCA 583.
[63] Oliver [16].
Oliver was referred to by the Full Court of the Federal Court in Clarence City Council v The Commonwealth,[64] which noted but did not make any ruling about the views which Lee J had expressed. The reasoning in Oliver was relied on by Katzmann J in Hafertepen v Network Ten Pty Ltd,[65] as providing one of multiple bases on which the court had jurisdiction in that case (in a context where there was no dispute as to the court's jurisdiction). The correctness of the approach suggested in Oliver was doubted by Anastassiou J in Seven Networks (Operations) Ltd v Cricket Australia.[66] The suggested approach in Oliver was not followed by Derrington J in DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [No 3].[67] As Derrington J found the claim in DJ Builders to be outside the court's jurisdiction, the rejection of the approach suggested in Oliver formed part of the ratio of the decision in DJ Builders.
[64] Clarence City Council v The Commonwealth [2020] FCAFC 134; (2020) 280 FCR 265 [171] - [172].
[65] Hafertepen v Network Ten Pty Ltd [2020] FCA 1456 [44].
[66] Seven Networks (Operations) Ltd v Cricket Australia [2021] FCA 1031; (2021) 393 ALR 53 [62] - [63].
[67] DJ Builders & Son Pty Ltd (in liq) v Queensland Building and Construction Commission [No 3] [2021] FCA 1041; (2021) 156 ACSR 539 [15] - [19].

Lee J returned to the issue in Mulley v Hayes,[68] reiterating the views his Honour had expressed in Oliver that it was arguable that proceedings in which a corporation established under federal law is a party arise under a law made by the Commonwealth Parliament for that reason. However, as the proceedings in Mulley concerned only natural persons the issue did not arise in that case.
[68] Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360 [47] - [58].
In Raghubir v Nicolopoulos,[69] the Full Court of the Federal Court noted that the claimant in that case could not rely on Lee J's observations in Oliver as the respondents were either natural persons or constituted under State law. The Full Court did not appear to draw any conclusion as to the correctness of Lee J's observations.
[69] Raghubir v Nicolopoulos [2022] FCAFC 97; (2022) 402 ALR 532 [21].
In Malecki v Macko,[70] Besanko J addressed, but did not resolve, arguments for and against the approach taken by Lee J in Oliver. In the course of doing so, his Honour drew a distinction between a matter arising under federal law and a 'party's ability or capacity to agitate a matter or liability in relation to a matter arising under federal law'. Besanko J said:[71]
It is the matter which must itself arise under federal law in order for jurisdiction to be engaged, in that the jurisdictional basis must be endogenous to the justiciable controversy between the parties. If this is a valid and relevant distinction, it means that the Court will not have jurisdiction in a matter itself bearing no real connection to federal law merely by reason of the link, exogenous to the justiciable controversy, between a party or parties to the matter, and the Corporations Act.
Ultimately, Besanko J found it unnecessary to decide the question because jurisdiction was established on another basis.[72]
[70] Malecki v Macko [2022] FCA 766 [29] - [35].
[71] Malecki [33].
[72] Malecki [35].
Lee J again returned to the issue in Smith v National Australia Bank Ltd.[73] This case concerned an application for pre-action discovery brought against the National Australia Bank. The application was refused on jurisdictional grounds. Lee J found that claims under Commonwealth laws had been colourably advanced for the purpose of seeking to attract the court's jurisdiction. Lee J then turned to consider whether the court otherwise had jurisdiction on the basis that the Bank was incorporated under the Corporations Act. Lee J referred to the decision of Derrington J in DJ Builders rejecting the argument and concluded that, despite his obiter observations in Oliver, it cannot be said that the ratio of DJ Builders is plainly wrong. Lee J said:[74]
On the current state of the authorities, and unless and until a Full Court says otherwise, the mere fact that the respondent's ability to be sued is conferred by and depends upon the Corporations Act is insufficient to attract federal jurisdiction.
[73] Smith v National Australia Bank Ltd [2022] FCA 1186 [116] - [118].
[74] Smith [118].
The issue was next addressed in the decision of the Victorian Court of Appeal in Thurin.
In Thurin, the Victorian Court of Appeal was concerned with a claim in the Victorian Civil and Administrative Tribunal (VCAT) in relation to defective building work by a builder of the claimants' house. The Domestic Building Contracts Act 1995 (Vic) (DBC Act) gave VCAT a generally exclusive jurisdiction to resolve domestic building disputes. The respondent builder brought claims for apportionment and contribution against third parties alleging contraventions by those parties of the Trade Practices Act 1974 (Cth). The court concluded that, once those federal claims were raised, the whole matter the subject of the VCAT proceedings came within federal jurisdiction. The matter could therefore not be resolved in the VCAT proceedings as it was common ground that VCAT was not a court of a State and the jurisdiction conferred on VCAT by the DBC Act involved the exercise of judicial power.
Given the above conclusions, it was, as the Victorian Court of Appeal recognised, strictly unnecessary to determine the alternative basis on which it was contended that the VCAT proceedings involved matters in federal jurisdiction. However, the court decided to still consider whether the fact that the respondents to the VCAT proceeding were incorporated under the Corporations Act meant that, of itself, the VCAT proceeding involved a matter arising under any laws of the Parliament.[75]
[75] Thurin [51].
The Victorian Court of Appeal reviewed various High Court decisions dealing with s 76(ii) of the Constitution,[76] and concluded:[77]
The cases discussed above are clear authority for the proposition that, where the 'very subject' of the dispute is something that owes its existence to a Commonwealth law, then the dispute will be a 'matter arising' under that law, even if the cause of action is founded in a State law or the common law. … But it does not follow that any dispute to which a corporation is a party is a matter of that kind. To the contrary, we do not think that it is. In that regard, the authorities make clear that if a Commonwealth law is 'lurking in the background', or merely an 'incidental consideration', then the matter will not be one arising under that law.
… [I]f the property the subject of the contract has no relevant connection with a Commonwealth law, the contract is not regulated by a Commonwealth law, and the only connection with a Commonwealth law is that a party is a corporation incorporated under the Corporations Act, then in our opinion the authorities do not compel, or even point towards, the matter being one 'arising under' a Commonwealth law.
Thus, we consider that a matter in which the sole connection with a Commonwealth law is that one or more of the parties to the dispute is a corporation incorporated under the Corporations Act lacks the necessary sufficiency of connection required to characterise the matter as one that arises under the Corporations Act. (citations omitted)
[76] Thurin [80] - [110].
[77] Thurin [111] - [113].
The Victorian Court of Appeal accepted the distinction drawn by Besanko J in Malecki, which is referred to at [83] above. Their Honours said that this distinction attracts some support from the terms of s 75 and s 76 of the Constitution, which refer to matters that can, broadly speaking, be divided into two classes:[78]
(a)in one class, comprised of s 75(iii), s 75(iv) and s 75(v), jurisdiction depends on the character of the parties, rather than solely on the subject of the controversy;
(b)in the other class, comprised of s 75(i), s 75(ii) and all the sub-sections of s 76, jurisdiction depends on the subject of the controversy, rather than on the character of the parties.
Within that taxonomy, s 76(ii) of the Constitution is concerned with 'the character of the cause, whatever may be the parties'. (citation omitted)
[78] Thurin [114].
In Lockyer v Citic Pacific Mining Management Pty Ltd,[79] Colvin J, having determined the proceedings were in federal jurisdiction on other grounds, found it unnecessary to reach a view on the possibility suggested in Oliver. After referring to decisions in the Federal Court (but not the decision in Thurin), Colvin J described the point as 'a significant one' the consideration of which was 'best left for a case that turns upon the point'.
[79] Lockyer v Citic Pacific Mining Management Pty Ltd [2022] FCA 1381; (2022) 297 FCR 151 [37].
Reference to the issue was made by Leeming JA in Allianz Australia Insurance Ltd v Probuild Constructions (Aust) Pty Ltd.[80] The topic of that litigation did not concern any question of federal jurisdiction. However, part of the background to the case involved an attempt by a builder to set aside an adjudication made under the Building and Construction Industry Security of Payment Act 2002 (Vic). The builder contended that the adjudicator was exercising judicial power in respect of a matter arising under the Corporations Act because '[t]he parties to the adjudication were corporations registered under and created by the [Corporations Act] and so their rights and liabilities owe their existence to federal law'.[81] Leeming JA noted that the challenge to the adjudication was never determined and was not the subject of argument in the New South Wales Court of Appeal. However, Leeming JA observed:[82]
However, I do not wish my silence to be taken as some form of tacit endorsement that all aspects of it were soundly based. To the contrary, much is difficult to reconcile with settled principle.
[80] Allianz Australia Insurance Ltd v Probuild Constructions (Aust) Pty Ltd [2023] NSWCA 56.
[81] See Allianz [12] - [13].
[82] Allianz [10].
After referring to Oliver, Mulley, DJ Builders and Thurin, Leeming JA observed:[83]
Lest any such arguments be made opportunistically in some other forum which is not a 'court of a State', as indeed occurred in Western Australia: see Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7, it is as well to note that it was rejected at [43] by a tribunal over which Pritchard JA presided as 'not capable of legal argument'. As presently advised, I respectfully agree.
The reference to the Tribunal decision in this passage is to the primary decision in the present case.

Disposition

[83] Allianz [13].

None of the above authorities determine, in a manner binding on this court, the question of whether a claim by or against a corporation incorporated under the Corporations Act is, for that reason alone, a matter arising under a law made by the Parliament for the purposes of s 76(ii) of the Constitution. The determination of that question by the Victorian Court of Appeal in Thurin was plainly obiter and, as such, is not binding on this court, although this court would ordinarily be expected to give great weight to that determination.[84] Otherwise, the substantive curial discussion comprises observations by single judges, often in relation to a point which did not require determination and was not argued in the proceedings in which the observation was made. The only case which determined the question when it was necessary to do so was DJ Builders.
[84] Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 [25] - [26].
However, while it is not binding upon us, we do agree with the conclusion reached by the Victorian Court of Appeal in Thurin substantially for the reasons explained by the court in that case.
The terms used by Latham CJ in Ex parte Barrett are not to be construed as a statute. They were not addressed to the argument sought to be advanced in this case. Hanssen has not pointed to any decision of the High Court which supports its proposition. Further, there are decisions of the High Court which appear to proceed implicitly from the premise that the mere fact that a party is incorporated under a Commonwealth law is not sufficient to bring the matter within federal jurisdiction.
For example, in Re Australian Securities and Investments Commission; Ex parte Edensor Nominees Pty Ltd,[85] the High Court determined that the Federal Court was exercising federal jurisdiction in a matter to which the Commonwealth was a party within the meaning of s 75(iii) of the Constitution. The analysis characterising ASIC, which was established under federal law,[86] as having the status of the Commonwealth, and considering whether the case fell within the limits of jurisdiction conferred by s 39B(1A)(a) of the Judiciary Act,[87] would be redundant on the argument of Hanssen in the present case. If Hanssen's argument is correct then the matter would necessarily have been a matter arising under the ASIC Act and within the Federal Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act.
[85] Re Australian Securities and Investments Commission; Ex parte Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559.
[86] See Edensor Nominees [40]. ASIC was established under the Australian Securities and Investments Commission Act 1989 (Cth) (ASIC Act).
[87] See Edensor Nominees [39] - [47].
Similarly, in Austral Pacific Group Ltd (in liq) v Airservices Australia,[88] a contribution claim against Airservices Australia by Austral Pacific was made in a personal injury action by one of its employees. At the time of the injury, the relevant entity was the Civil Aviation Authority. When Airservices Australia was established, the liabilities of the Civil Aviation Authority were transferred to it by a federal law. The High Court held that the matter was in federal jurisdiction both because Airservices Australia's claimed liability could only arise under that federal law and because Airservices Australia had the status of the Commonwealth. Again, this analysis would have been redundant if the status of Airservices Australia as a body incorporated under a Commonwealth Act was sufficient to bring the matter into federal jurisdiction.
[88] Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 [10].
Of course, the argument Hanssen advances in the present case was not advanced in the cases to which we have referred. Allowance must be made for the prospect that a novel argument is correct. But the fact that the argument has never been appreciated across a history of litigation which proceeds on a different premise does count against the acceptance of the argument.
Ultimately, the only authority positively supporting Hanssen's argument is the decision in Hafertepen, where Katzmann J accepted the proposition that Lee J had merely said was arguable without any further critical analysis evident in reasons delivered in a case where there was no dispute that the court had jurisdiction and where jurisdiction was established on other grounds.
The argument that the mere status of a party to a justiciable controversy as an entity created by a Commonwealth law is sufficient to engage s 76(ii) of the Constitution seems to us to be inconsistent with the structure of s 75 and s 76 of the Constitution. As was noted in Thurin, some of the matters identified in those provisions are described by reference to the status of the parties to the controversy - the Commonwealth (s 75(iii) and s 75(v)); States (s 75(iv)); and residents of a State (s 75(iv)). In that context, an intention to make any matter to which a body established by Commonwealth law was a party a matter of federal jurisdiction would be naturally expressed by referring to a matter to which such a body was a party.
Further, the rights at issue in the Tribunal proceedings in the present case neither owe their existence to Federal law nor depend upon Federal law for their enforcement. The rights are created by the Act and the enforcement of any payment order the Tribunal might make in the primary proceedings is provided for by s 85 of the SAT Act and pt 4 of the Civil Judgments Enforcement Act 2004 (WA).
It is important in this context to recall that the fact that a body is established by federal law does not make it immune from the application of State law, including the Act, the SAT Act and the Civil Judgments Enforcement Act. In establishing a corporation, the Commonwealth Parliament may confer rights or immunities upon the corporation which are inconsistent with the application of State law. In that event, State laws will be rendered inoperative to the extent of the inconsistency under s 109 of the Constitution.[89] Otherwise, subject to presently immaterial exceptions, State laws will generally apply to bodies created by federal law of their own force, even when those bodies have the status of the Commonwealth.[90] Unless the matter is otherwise in federal jurisdiction,[91] these State laws will apply to a corporation incorporated under the Corporations Act of their own force. While Hanssen owes its existence as a body corporate to the Corporations Act, the Act, the SAT Act and the Civil Judgments Enforcement Act do not rely on any federal law for their application to that corporation whose existence is continued by Commonwealth law. Unless the proceedings are otherwise in federal jurisdiction, the rights conferred by the Act do not depend on federal law for their enforcement.
[89] See, for example, Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46, 56 - 57; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453, 465 - 466.
[90] See Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410.
[91] As to the application of State laws in federal jurisdiction see Rizeq.
For these reasons, we agree with the conclusion expressed in Thurin that the mere fact that one of the parties to the dispute is a corporation incorporated under the Corporations Act is insufficient to characterise the dispute as a matter arising under the Corporations Act. The matter before the Tribunal in the present case was not a matter arising under the Corporations Act, and so was not a matter referred to in s 76(ii) of the Constitution. The matter is not outside the Tribunal's jurisdiction on the first basis contended for by Hanssen.

Section 76(i) of the Constitution

The second basis on which Hanssen contends the proceedings before the Tribunal concerned a matter in federal jurisdiction is that it was a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution.

Hanssen's constitutional submission

Hanssen's constitutional submission, which is said to have characterised the matter before the Tribunal as a matter arising under the Constitution or involving its interpretation, can be summarised as follows:
1.The matter before the Building Commissioner when his delegate made the remedial order on 7 August 2015 was a matter arising under the Corporations Act as Hanssen was a corporation continued in existence under the Corporations Act.
2.Section 37(1) of the Act would be contrary to ch III of the Constitution, and invalid for that reason, to the extent that it conferred power on the Building Commissioner to make a building remedy order in a matter arising under the Corporations Act.
3.Pursuant to s 7 of the Interpretation Act, the Act is to be read down so as not to authorise the Building Commissioner to adjudicate on those matters.
4.As a consequence, s 37(1) of the Act did not authorise the Building Commissioner to make a building remedy order against Hanssen, so that the remedial order purportedly made by the Building Commissioner's delegate on 7 August 2015 was ultra vires the Act.
5.Because there is no valid remedial order, there was no building remedy order that could be the subject of the exercise by the Tribunal of the power conferred by s 51 of the Act.
Hanssen says that the Tribunal's finding that its constitutional submission was genuinely advanced is not challenged on appeal. Hanssen says that, even if this court rejects the constitutional submission, the proposition that the Building Commissioner was purporting to exercise federal jurisdiction in a matter arising under the Corporations Act is not incapable on its face of legal argument. Hanssen contends that the Tribunal erred in holding the proposition to be incapable of legal argument given the range of views expressed on the issue in various courts. Hanssen contends that its constitutional submission characterises the whole of the substantive matter as one involving the interpretation of s 76(ii) of the Constitution.
Senior counsel for Hanssen ultimately accepted that, on Hanssen's submission, the Act is not invalid but rather is to be read down to avoid inconsistency with ch III of the Constitution.[92] This is not fatal to Hanssen's argument that the substantive matter arises under the Constitution or involves its interpretation. A matter will involve the interpretation of the Constitution if the interpretation of a constitutional provision is essential to the interpretation of a statute.[93]

Merits of Hanssen's constitutional submission

[92] Appeal ts 8.

[93] Attorney General (NSW) v Commonwealth Savings Bank of Australia (327 - 328).

Hanssen's argument that the matter is one arising under the Constitution or involving its interpretation arises only in relation to the Tribunal proceedings. Up until the Building Commissioner's delegate made the building remedy order on 7 August 2015, there had been no suggestion that the Commissioner was being asked to adjudicate on a matter identified in s 76 of the Constitution. The first suggestion of any constitutional argument was made in 2022, over 6 years later. In the absence of any suggestion of a constitutional defence, any matter before the Building Commissioner in August 2015 could not at that time be characterised as a matter arising under the Constitution or involving its interpretation. The matter could not be characterised as a matter identified in s 76(i) of the Constitution at a time well prior to Hanssen's constitutional submission being raised so as to form part of the controversy.
Hanssen's constitutional submission as it relates to the Tribunal proceedings is wrong for at least two reasons.
First, as explained above, the mere fact that one of the parties to the dispute is a corporation incorporated under the Corporations Act is insufficient to characterise the dispute as a matter arising under the Corporations Act. The continuation of Hanssen's incorporation under the Corporations Act is an insufficient basis for characterising any matter before the Building Commissioner as a matter identified in s 76 of the Constitution.
Secondly, the power being exercised by the Building Commissioner's delegate in making a remedial order was not judicial power.
As explained by Quinlan CJ in GS v MS,[94] ch III of the Constitution is concerned with, and only concerned with, judicial power.
[94] GS v MS [32] - [39]. See also Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191; (2023) 379 FLR 256 [40] - [42] (Kirk JA; Michelmore JA & Griffiths AJA agreeing).
The concept of judicial power defies a precise definition applicable to all cases. The classical general statement of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd was expressed in the following terms:[95]
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[95] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374.
However, it is recognised that, while some powers (such as the determination of criminal guilt) are essentially judicial in character, other functions may be judicial or administrative depending upon the manner of their exercise. There are some powers which appropriately may be treated as administrative when conferred on an administrative body and as judicial when conferred on a federal court or court exercising federal jurisdiction.[96] As Quinlan CJ observed in GS, there is no 'bright line' test to be applied in the determination of whether a particular power is properly to be characterised as judicial power.[97] The determination, in any given case, as to whether a particular power or function is to be characterised as 'judicial power' involves an evaluative judgement having regard to a complex of factors including the nature of the power, the repository of the power and historical considerations.[98]
[96] See Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350 [16], [36]; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352 [59].
[97] GS [69].
[98] GS [75].
A number of features of the Building Commissioner's power to make a remedial order count strongly against characterising the power as judicial. The Building Commissioner is an officer of the executive government who need not be legally qualified and who is given a range of executive functions.[99] The Building Commissioner need not exercise his or her powers personally but may delegate them to a person or committee.[100] In dealing with a complaint, the Building Commissioner must act informally, is not bound by the rules of evidence and may inform himself or herself in any way the Building Commissioner thinks fit.[101] The Building Commissioner proceeds on consideration of an investigative report prepared, not by the parties to a dispute, but by an authorised person appointed by the Building Commissioner.[102]
[99] Sections 85 - 86 of the Act.
[100] Section 91 of the Act.
[101] Section 46 of the Act.
[102] Sections 9 - 11 of the Act.
None of the features referred to in the previous paragraphs are necessarily determinative. However, a critical factor is that the determination by the Building Commissioner to make a remedial order does not operate as a final determination of the parties' rights. A remedial order by the Building Commissioner is an administrative order which, in contrast to a payment order, is not capable of being registered and enforced as a judgment of a court. As discussed at [22] - [24] above, a remedial order of the Building Commissioner can only be enforced by criminal prosecution for an offence of contravening the order or by the making of a payment order under s 51 of the Act. In either case, the validity of the remedial order will be subject to collateral challenge on administrative law grounds in the enforcement proceedings. Provision for curial registration and enforcement of an order made by a body other than a court will often be critical to the characterisation of the power conferred on that body as judicial power.[103] The absence of such provision in the present case, considered in light of the other aspects of the Building Commissioner's power to make a remedial order, leads to the conclusion that the making of a remedial order by the Building Commissioner does not involve an exercise of judicial power.
[103] See Brandy (269 - 271); Attorney General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 [42]; Citta Hobart [12] - [16].
For the above two reasons, there is no merit in Hanssen's contention that the power conferred on the Building Commissioner to make a remedial order by s 37(1) of the Act must be read down to avoid the provision purporting to confer judicial power on the Building Commissioner in a matter arising under the Corporations Act. There is, therefore, no merit in Hanssen's contention that the remedial order made by the Building Commissioner's delegate on 7 August 2015 is invalid for reasons involving the interpretation of s 76 of the Constitution.

Was the Tribunal exercising jurisdiction in a constitutional matter?

The fact that the constitutional submission advanced by Hanssen in the Tribunal is without merit does not answer the question of whether the Tribunal proceedings concerned a matter arising under the Constitution or involving its interpretation. As the plurality noted in Citta Hobart:[104]
[F]or a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
[104] Citta Hobart [35].
The plurality also emphasised that examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.[105] That reflects the principle that:[106]
1.a justiciable controversy answers the description in s 76(i) of a matter 'arising under' the Constitution where the invalidity or inoperability of a Commonwealth or State law is asserted in the controversy in reliance on the Constitution; and
2.the assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or withdrawn.
[105] Citta Hobart [37].
[106] Citta Hobart [31], [33].
We have rejected Hanssen's submission that any matter considered by the Building Commissioner's delegate when making the remedial order on 7 August 2015 answered the description of a matter arising under the Corporations Act by reason of Hanssen being taken to be incorporated under that Act.
The first reason for which we have rejected Hanssen's constitutional submission at [110] above is that the continuation of Hanssen's incorporation under the Corporations Act was an insufficient basis for characterising any matter before the Building Commissioner as a matter identified in s 76 of the Constitution. Given the varying observations by different courts on the question discussed at [79] - [92] above, and the absence of any definitive answer to that question by any decision binding on this court, we have reservations as to whether this first reason is sufficient to characterise Hanssen's constitutional submission as one which is incapable on its face of legal argument.
The second reason for which we have rejected Hanssen's constitutional submission at [111] - [116] above is that the making of a remedial order by the Building Commissioner did not involve the exercise of judicial power. Given the difficult evaluative nature of the exercise of characterising the exercise of power as judicial or administrative, we also have reservations as to whether this second reason is sufficient to characterise Hanssen's constitutional submission as one which is incapable on its face of legal argument.
For these reasons, we have reservations as to whether Hanssen's constitutional submission is properly characterised as being incapable on its face of legal argument. The Tribunal accepted that Hanssen's constitutional submission was genuinely made,[107] and that conclusion has not been challenged in this appeal.
[107] Primary decision [7], [46].
However, even if Hanssen's constitutional submission is genuinely made and is not incapable on its face of legal argument it does not, in our view, characterise the whole of the substantive matter as a matter arising under the Constitution or involving its interpretation.
As explained at [54] - [67] above, that substantive matter is to be characterised in a way that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated. A controversy about the jurisdiction of a particular forum to adjudicate upon the matter may itself constitute a matter arising under the Constitution. But the characterisation of the matter on which adjudication is sought must occur independently of the commencement of proceedings in the forum.
In the present case the substantive matter is identified at [68] above. That matter is to be distinguished from the jurisdictional matter identified at [69] above. Each distinct matter is to be identified as a matter of substance, rather than the form in which the controversy is presented to a court or tribunal for determination.
The jurisdictional matter does not characterise the substantive matter. The resolution of the jurisdictional matter does not affect the parties' rights, duties or liabilities at issue in the substantive matter, which concerns whether the building services were faulty or unsatisfactory and the consequent rights and liabilities of Hanssen and the Strata Company. Rather, the jurisdictional matter only concerns the forum in which the substantive matter can be determined. Hanssen's constitutional submission about the validity of the Building Commissioner's remedial order forms part of the jurisdictional matter rather than the substantive matter. It is a controversy about whether the Building Commissioner was an available forum for determination of the substantive matter, rather than a controversy which is part of the substantive matter. The mere assertion that the substantive matter is one identified in s 76 of the Constitution does not make it so.
In the present case the controversy about whether the substantive matter referred to at [68] above is a matter arising under the Corporations Act concerns the Building Commissioner's and Tribunal's authority to adjudicate upon the substantive matter. That controversy about authority to adjudicate is the jurisdictional matter referred to at [69] above. The existence of that jurisdictional matter does not give the substantive matter the character of a matter arising under the Constitution or involving its interpretation. The jurisdictional matter and the substantive matter are separate controversies. Even if Hanssen's constitutional submission was genuinely advanced and not incapable on its face of legal argument, that would not be sufficient to characterise the substantive matter as a matter arising under the Constitution or involving its interpretation.
Although the above reasoning differs from that adopted by the Tribunal, in our view the Tribunal's ultimate conclusion - that the substantive matter on which it was asked to adjudicate was not a matter arising under the Constitution or involving its interpretation - was correct.

Orders

For the above reasons, while we would grant Hanssen leave to appeal, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
29 JULY 2024