Sharma and Carlino
[2019] WASAT 1
•2 JANUARY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: SHARMA and CARLINO [2019] WASAT 1
MEMBER: MR D AITKEN (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 JANUARY 2019
FILE NO/S: CC 1655 of 2018
BETWEEN: MUNISH SHARMA
UPASANA SHARMA
Applicants
AND
VINCENZO CARLINO
SERGIO DEMALI
Respondents
Catchwords:
Proceeding under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) Applicants residents of New South Wales Jurisdiction Whether there is a matter between residents of different States for the purposes of s 75(iv) of the Australian Constitution The preclusion of the conferral of jurisdiction on the Building Commissioner and the Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in a matter between residents of different States as a result of the decision in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423
Legislation:
Anti-Discrimination Act 1977 (NSW)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(c), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37, s 38, s 51, s 55, s 85
Civil and Administrative Tribunal Act 2013 (NSW)
Commonwealth of Australia Constitution Act 1900 (Cth), s 75, s 75(iv), s 76, s77(iii), Ch III
Interpretation Act 1984 (WA), s 7
Interpretation Act 1987 (NSW), s 31
Judiciary Act 1903 (Cth), s 39(2)
State Administrative Tribunal Act 2004 (WA), s 15(1), s 16(1), s 47(2), s 60(2)
Result:
Preliminary issue determined
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondents | : | In Person |
Solicitors:
| Applicants | : | N/A |
| Respondents | : | N/A |
Case(s) referred to in decision(s):
Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423
CGU Insurance Limited v Blakely (2016) 259 CLR 339
Cox v Journeaux (1934) 52 CLR 282
Crouch v Commissioner for Railways (1985) 159 CLR 22
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Fencott v Muller (1983) 152 CLR 570
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
Momcilovic v The Queen [2011] HCA 34
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palmer v Ayres (2017) 259 CLR 478
R v Langdon; Ex parte Langdon (1953) 88 CLR 158
R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197
R v Oregan; Ex parte Oregan (1957) 97 CLR 323
Re Judiciary and Navigation Acts (1921) 29 CLR 257
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Rizeq v Western Australia (2017) 91 ALJR 707
Rochford v Dayes (1989) 84 ALR 405
Shuttleworth and Pearson [2018] WASAT 112
The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290
Watson and Godfrey v Cameron (1928) 40 CLR 446
Watson v Marshall and Cade (1971) 124 CLR 621
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding is a matter that was before the Building Commissioner under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), which has been transferred to the Tribunal under s 55 of the BSCRA Act.
The applicants, Munish Sharma and Upasana Sharma made a complaint to the Building Commissioner under s 5(1) of the BSCRA Act (the Complaint) in respect of a regulated building service, namely external concrete work (the Building Service), carried out by the respondents, Vincenzo Carlino and Sergio Demali at 10 Camrose Parkway, Baldivis, Western Australia.
Pursuant to s 11(1)(c) and s 37 of the BSCRA Act, the Building Commissioner made Building Remedy Order No 77 of 2018 (BRO No 77) requiring the respondents to remedy the Building Service by taking the action specified in the order by the date specified in the order. BRO No 77 is a building remedy order referred to in s 36(1)(a) of the BSCRA Act (work order).
Subsequently, the applicants alleged that the respondents had not complied with BRO No 77 and requested that the Building Commissioner issue a 'BRO to pay'.
Under s 51 of the BSCRA Act the Building Commissioner may revoke a work order and make a building remedy order referred to in s 36(1)(b) or (c) of the BSCRA Act (monetary order) if the Building Commissioner is satisfied that a work order has not been complied with.
The applicants presented evidence to the Building Commissioner to support their request for a monetary order, but that evidence was disputed by the respondents and the Building Commissioner applied to the Tribunal, under s 55 of the BSCRA Act, to transfer the matter to the Tribunal for it to deal with under s 51 of the BSCRA Act.
The Tribunal listed the matter for a directions hearing and sent a notice of directions hearing to the applicants and the respondents.
In response to the notice of directions hearing, the applicants wrote to the Tribunal stating that they have moved to New South Wales and requesting that they be permitted to attend the directions hearing by teleconference, which the Tribunal allowed.
The statement by the applicants that they have moved to New South Wales raised the question of whether or not the Tribunal has jurisdiction to deal with the matter in light of the decision of the High Court of Australia (High Court) in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423 (Burns v Corbett). That decision has ramifications regarding the jurisdiction of the Tribunal where the parties to a proceeding are residents of different States.
Preliminary issue to be determined
At the directions hearing the Tribunal consented to the transfer of the proceeding from the Building Commissioner and decided to determine, entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the following preliminary issue:
(a)Are the applicants residents of a State other than the State of Western Australia?; and
(b)If (a) is answered in the affirmative, does the Tribunal have jurisdiction to deal with this matter, considering the decision of the High Court in Burns v Corbett?
The parties were given the opportunity to provide to the Tribunal, and each other, written submissions and any evidence relevant to the preliminary issue.
The applicants provided written submissions, but the respondents did not provide any submissions or evidence.
The applicants' submissions
The applicants' submissions almost entirely deal with the question of whether BRO No 77 should be replaced with a monetary order, rather than the preliminary issue.
The only relevant part of the applicants' submissions, which addresses the preliminary issue, is their statement that the Tribunal should not dismiss the matter because they still own the property at 10 Camrose Parkway, Baldivis, Western Australia and the respondents still reside in Western Australia.
The applicants' submissions do not deny the applicants' earlier statement (in response to the notice of the directions hearing) that they have moved to New South Wales.
The decision in Burns v Corbett
Section 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution) provides that the High Court shall have original jurisdiction (federal jurisdiction), relevantly, in 'all matters … between residents of different States'.
Section 77(iii) of the Constitution empowers the Commonwealth Parliament to make laws investing any 'court of a State' with federal jurisdiction and s 39(2) of the Judiciary Act 1903 (Cth) does that, subject to various limitations.
Burns v Corbett concerned an appeal to the High Court from the decision of the Court of Appeal of the Supreme Court of New South Wales that the Civil and Administrative Tribunal of New South Wales (NCAT) did not have jurisdiction to hear and determine a dispute arising under the Anti-Discrimination Act 1977 (NSW) (AD Act) between a resident of New South Wales and a resident of another State; see Burns v Corbett at [14].
At all material times, the complainant, Mr Burns was a resident of New South Wales, the respondent to one of his complaints, Ms Corbett was a resident of Victoria and the respondent to his other complaint, Mr Gaynor was a resident of Queensland; see Burns v Corbett at [7].
A majority of the High Court (Kiefel CJ, Bell, Keane and Gageler JJ) dismissed the appeal on the basis that:
•The adjudicative authority in respect of the matters set out in s 75(iv) of the Constitution cannot be conferred on an organ of government, federal or State, other than a court referred to in Ch III of the Constitution; see Burns v Corbett at [45], [46], [64], [65], [69] and [121] (Note: the courts referred to in Ch III of the Constitution are the High Court, federal courts and courts of a State, which are therefore the only courts on which federal jurisdiction can be conferred).
•It was accepted by all parties that NCAT was not a court of a State; see Burns v Corbett at [27].
•The provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which confer jurisdiction on NCAT are invalid to the extent that they purport to confer jurisdiction on NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. And, pursuant to s 31 of the Interpretation Act 1987 (NSW), those provisions are to be read down so that they do not confer jurisdiction on NCAT to determine a complaint under the AD Act where the complainant and the respondent to the complaint are 'residents of different States' within the meaning of s 75(iv) of the Constitution; see Burns v Corbett at [64], [119] and [120].
In summary, the decision in Burns v Corbett, was that:
•The complaints by Mr Burns against Ms Corbett and Mr Gaynor were each a 'matter between residents of different States' for the purposes of s 75(iv) of the Constitution;
•Those complaints were, therefore, within federal jurisdiction and could not be dealt with by NCAT, since it is not a 'court of a State' and, therefore, cannot exercise federal jurisdiction; and
•The provisions of the NCAT Act which purport to confer jurisdiction on NCAT to deal with those complaints are to be read down so that they do not confer such jurisdiction.
The questions which arise from Burns v Corbett which are relevant to the determination of the preliminary issue in this proceeding are:
(1)Is this proceeding a 'matter' for the purposes of s 75(iv) of the Constitution?
(2)Are the applicants and the respondents 'residents of different States' for the purposes of s 75(iv) of the Constitution?
(3)Is the Tribunal a court of a State for the purposes of s 75(iv) of the Constitution?
Is this proceeding a 'matter' for the purposes of s 75(iv) of the Constitution?
The High Court has considered the question of what a 'matter' is for the purposes of s 75(iv) of the Constitution in a number of cases.
In Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, the High Court stated that a 'matter' is not a legal proceeding; it is the subject matter in a legal proceeding in which there is some immediate right, duty or liability to be established by the determination of the Court.
In Fencott v Muller (1983) 152 CLR 570 (Fencott), at 603, the High Court stated that 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.
In CGU Insurance Limited v Blakely (2016) 259 CLR 339 at 351 the High Court stated that 'matter' has two elements. Firstly, the subject matter itself and secondly, the concrete or adversarial nature of the dispute sufficient to give rise to a justiciable controversy.
In Burns v Corbett at [70], Gageler J referred to the above three cases and stated, succinctly, that a 'matter' encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated.
In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, at 405 the High Court stated that the task of identification of the 'matter' is to be approached as a tripartite inquiry: first, the identification of the subject matter for determination in the proceeding; secondly, the identification of the right, duty or liability to be established in the proceeding; and thirdly, the identification of the controversy between the parties to the proceeding for the quelling of which judicial power is invoked.
In Rizeq v Western Australia (2017) 91 ALJR 707 (Rizeq), at 719, the majority of the High Court, citing Fencott at 608, stated that the essential character of judicial power stems from the unique and essential function that judicial power performs by quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion.
In Palmer v Ayres (2017) 259 CLR 478, at 491, the High Court stated that the controversy that the Court is being asked to determine must be genuine, and not an advisory opinion divorced from a controversy, and only a claim is necessary; a 'matter' can exist even though a right, duty or liability has not been, and may never be, established.
The Complaint is a building service complaint under s 5(1) of the BSCRA Act.
Under s 5(1) of the BSCRA Act, a building service complaint is a complaint made to the Building Commissioner 'about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory'.
A regulated building service is any service or work specified in the definition of that term in s 3 of the BSCRA Act.
Under s 11(1)(c) of the BSCRA Act, the Building Commissioner may deal with a building service complaint under s 37 of the BSCRA Act.
Under s 37 of the BSCRA Act the Building Commissioner may make a building remedy order if the Building Commissioner is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory or decline to make a building remedy order.
Under s 36(1) of the BSCRA Act a building remedy order is an order that the person who carried out the regulated building service remedy it (a work order), or pay to the person who has made the complaint the costs of remedying it or an amount of compensation (a monetary order).
Under s 51 of the BSCRA Act, if the Building Commissioner is satisfied that a work order has not been complied with the Building Commissioner make revoke that order and make a monetary order.
Under s 55 of the BSCRA Act, the Building Commissioner may, with the consent of the Tribunal, transfer a matter which is before the Building Commissioner under s 51 of the BSCRA Act to the Tribunal.
Once a matter has been transferred to the Tribunal under s 55 of the BSCRA Act it becomes a proceeding before the Tribunal that comes within its original jurisdiction under s 15(1) of the SAT Act and under s 16(1) of the SAT Act the Tribunal is to deal with the matter in accordance with the SAT Act and the BSCRA Act.
Applying the principles from the above cases, the Tribunal has decided that a proceeding under s 51 of the BSCRA Act, which has been transferred to the Tribunal under s 55 of the BSCRA Act, is a 'matter' for the purposes of s 75(iv) of the Constitution for the following reasons:
(1)A proceeding under s 51 of the BSCRA Act is a concrete controversy between the person in whose favour a work order has been made (being the applicant to the proceeding in the Tribunal) and the person against whom the work order has been made (being the respondent to the proceeding in the Tribunal).
(2)The subject matter of the proceeding is whether the work order has not been complied with and, if so, whether it should be revoked and replaced with a monetary order.
(3)The liability sought to be established in the proceeding is the monetary order sought by the applicant against the respondent.
(4)The controversy between the applicant and the respondent, which must be determined by the Tribunal (or to use the terminology in the above cases, adjudicated or quelled) is whether the work order should be revoked and a monetary order made against the respondent.
(5)The Tribunal exercises judicial power to determine the controversy which is before it by taking evidence, making findings on material questions of fact, applying the law and exercising the discretion given to it under s 51 of the BSCRA Act to revoke the work order and make a monetary order, or decline to do so.
Therefore, the Tribunal has decided that this proceeding is a 'matter' for the purposes of s 75(iv) of the Constitution.
Are the applicants and the respondents 'residents of different States' for the purposes of s 75(iv) of the Constitution?
The Tribunal accepts the applicants' statement that they have moved to New South Wales and finds that to be the case.
However, notwithstanding that statement, the Tribunal still needs to decide whether the applicants are residents of New South Wales and whether the applicants and the respondents are therefore 'residents of different States' for the purposes of s 75(iv) of the Constitution.
The High Court has considered the meaning of the words 'residents of different States' in s 75(iv) of the Constitution in a number of cases, from which the Tribunal draws the following principles:
(1)Only a natural person can be a resident; see The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290 (Howe's case) in which the High Court (Knox CJ, Gavan Duffy and Higgins JJ) held that the word 'residents' in s 75(iv) of the Constitution refers to natural persons only and not to artificial persons or corporations. The High Court refused to reopen that decision in Cox v Journeaux (1934) 52 CLR 282 (Cox) and again in Crouch v Commissioner for Railways (1985) 159 CLR 22, in which the Court applied it.
(2)A natural person can only be a resident of one State at any time; see Howe's case at 296, where it was stated by Knox CJ and Gavin Duffy J that s 75(iv) of the Constitution seems to assume that a resident of one State cannot at the same time be a resident of another State.
(3)A resident is a natural person who resides permanently in a place, which is his or her home; see Howe's case where it was stated, by Knox CJ and Gavin Duffy J at 295 and by Higgins J at 327, that a resident is a natural person who resides permanently in a place. Also, in Howe's case it was stated by Isaacs J at 324, that a natural person is a resident of the State where, in fact, the nature of his residence shows it is his real home. And also, in Howe's case it was stated by Starke J at 327, that a resident is a natural person who lives, dwells and has his home in some place.
(4)A natural person can be a resident of a State after residing there for only a brief period of time; see R v Macdonald; Ex parte Macdonald (1953) 88 CLR 197 (a month), R v Langdon; Ex parte Langdon (1953) 88 CLR 158 (five months) and R v Oregan; Ex parte Oregan (1957) 97 CLR 323 (two and a half months).
(5)There must not be residents of the same State 'on both sides of the record'; see Watson and Godfrey v Cameron (1928) 40 CLR 446. Mr Watson, who was a resident of Victoria, and Mr Godfrey, who was a resident of New South Wales, instituted an action in the High Court against Mr Cameron, who was a resident of New South Wales. The High Court (Knox CJ, Isaacs, Higgins, Gavan Duffy, Powers and Starke JJ) held that it did not have jurisdiction under s 75 of the Constitution to deal with the matter because it was not an action between residents of different States. Knox CJ stated, at 448, that where there is a resident of New South Wales on each side of the record, then it is impossible to say that the controversy is between residents of different States. Higgins J stated, at 449, that in his opinion, the plaintiff or plaintiffs must be resident in one State and the defendant or defendants must be resident in another State for the action to be 'between' residents of different States.
(6)If a corporation is a party in a proceeding it is precluded from being a matter 'between residents of different States'. In Cox an action was brought in the High Court by a natural person resident of Queensland against a number of natural persons, who were residents of Victoria and two companies which had been incorporated in Victoria. Dixon J ordered that the action was to be dismissed unless the plaintiff elected to proceed only against the defendants who were natural persons, applying the decision in Howe's case. The plaintiff appealed the decision of Dixon J to the Full Court (constituted by Gavan Duffy CJ, Starke, Evatt and McTiernan JJ), which dismissed the appeal. In Rochford v Dayes (1989) 84 ALR 405 (Rochford), in a proceeding in the High Court, the plaintiff and the first and second defendants were natural persons and residents respectively of New South Wales, Queensland and Western Australia and the third defendant was a corporation. In Rochford, at 406, Gaudron J noted that in Cox Dixon J, at first instance, held that the presence of a corporation on the record had the effect of denying to a proceeding otherwise between residents of different States the character of a matter 'between residents of different States' as those words are used in s 75(iv) of the Constitution and followed that decision, making an order that the action be dismissed unless the plaintiff elected to proceed only against the first and second respondents.
(7)The relevant date of a natural person's residence is the date the proceeding is commenced as opposed to the date of the conduct in question in the matter; see Watson v Marshall and Cade (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134].
(8)A proceeding may become a 'matter between residents of different States' after it has commenced and before it is determined. If that happens the matter will then fall within federal jurisdiction under s 75(iv) of the Constitution. 'Jurisdiction' is the authority to adjudicate or determine a matter, which is to be distinguished from the law that is applied in the exercise of that jurisdiction; see Rizeq at [8], [9], [49], [50], [51], [52], [127] and [128]. Therefore, although a proceeding, when it is commenced in a court or the Tribunal, may be within State jurisdiction, the authority to adjudicate under State jurisdiction will cease if the matter subsequently falls within federal jurisdiction.
Applying the above principles, the Tribunal finds that, for the purposes of s 75(iv) of the Constitution, the applicants are now residents of New South Wales and the respondents are, and have been at all relevant times, residents of Western Australia.
The Tribunal therefore finds that the applicants and the respondents are 'residents of different States' for the purposes of s 75(iv) of the Constitution for the following reasons:
(1)The applicants and the respondents are all natural persons and they are the only parties in this proceeding.
(2)Even though the applicants were, apparently, residents of Western Australia firstly, when the Building Service was carried out by the respondents, secondly, when they made the Complaint to the Building Commissioner and, thirdly, when BRO No 77 was made, they are now residents of New South Wales. The applicants can only be residents of one State at any time and their residence is now in New South Wales, where they are living.
(3)The applicants are residents in one State (New South Wales) and the respondents are residents in another State (Western Australia) and, therefore, they are residents of different States.
Is the Tribunal a court of a State for the purposes of s 75(iv) of the Constitution?
The Western Australian Court of Appeal has held that the Tribunal is an administrative tribunal, not a court; see Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] and Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 at [26].
Also, in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [55] Allanson J stated that the Tribunal is not a court but an administrative tribunal, even when constituted by a judicial member. That view is consistent with the decision of the Federal Court in Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 where, at 584, Bowen CJ and Deane J refer to the appointment of Davies J as a Deputy President of the Administrative Appeals Tribunal as being a personal appointment, albeit that it was necessary that he hold one of a number of designated qualifications to be so appointed, which in his case was that he was a judge of the Federal Court.
On the basis of the above decisions the Tribunal has decided that it is not a court and therefore is not 'court of a State' for the purposes of s 75(iv) of the Constitution.
Conclusion regarding the preliminary issue
This proceeding is a matter between residents of different States for the purposes of s 75(iv) of the Constitution.
The Tribunal therefore concludes that the proceeding is within federal jurisdiction and cannot be dealt with by the Tribunal since the Tribunal is not a court of a State and cannot exercise federal jurisdiction.
The fact that the property where the Building Service was carried out is situated in Western Australia and that the respondents are residents of Western Australia has no bearing on this conclusion.
This conclusion has consequences for the provisions of the SAT Act and the BSCRA Act which purport to confer jurisdiction on the Tribunal to deal with this proceeding. Those provisions are invalid to the extent that they purport to confer jurisdiction on the Tribunal to determine a matter which falls within s 75(iv) of the Constitution.
Section 7 of the Interpretation Act 1984 (WA) (Interpretation Act) provides as follows:
Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.
Following the reasoning in Burns v Corbett at [64] and [119], the provisions of s 16(1) of the SAT Act and s 51 of the BSCRA Act which confer jurisdiction on the Tribunal to revoke a work order and to make a monetary order are invalid to the extent that they purport to confer jurisdiction on the Tribunal to deal with this proceeding. However, to avoid that conclusion those provisions can and should be read down, pursuant to s 7 of the Interpretation Act, so that they do not confer jurisdiction on the Tribunal to determine this proceeding.
The first part of the preliminary issue is determined in the affirmative (the applicants are residents of a State other than Western Australia) and the second part of the preliminary issue is determined in the negative (the Tribunal does not have jurisdiction to deal with this matter).
The Tribunal will, therefore, make the orders set out below.
Questions regarding the jurisdiction of the Building Commissioner in this matter
As a result of the decision that the Tribunal does not have jurisdiction to deal with this matter, two questions may be raised by either the applicants or the respondents regarding the jurisdiction of the Building Commissioner in respect of the matter.
Those questions are:
(1)Did the Building Commissioner have jurisdiction to make BRO No 77?; and
(2)Would the Building Commissioner have had jurisdiction under s 51 of the BSCRA Act to deal with the applicants' request for a monetary order to be made in lieu of BRO No 77, if the matter had not been transferred to the Tribunal under s 55 of the BSCRA Act?
Although the Tribunal does not need to decide these questions, it considers that it is appropriate to comment on them.
In its earlier decision in Shuttleworth and Pearson [2018] WASAT 112 at [38] the Tribunal decided that a building service complaint under the BSCRA Act is a 'matter' for the purposes of s 75(iv) of the Constitution and the complainant/applicant and the respondent are 'residents of different States' then the Tribunal is precluded from having jurisdiction to deal with the complaint.
As stated in (8) of [44] of this decision, 'jurisdiction' is the authority to adjudicate or determine a matter, which is to be distinguished from the law that is applied in the exercise of that jurisdiction.
Usually, no question will arise regarding the authority of the Building Commissioner to deal with a complaint made under the BSCRA Act, or to deal with a request under s 51 of the BSCRA Act that a work order be revoked and replaced with a monetary order, because the complainant and the respondent are not 'residents of different States' for the purposes of s 75(iv) of the Constitution. Therefore, no question will arise regarding the possible preclusion by s 75(iv) of the Constitution of the jurisdiction given to the Building Commissioner by the Parliament of Western Australia under the BSCRA Act.
There is no evidence before the Tribunal in this proceeding regarding when the applicants became residents of New South Wales. However, it appears that this occurred after BRO No 77 was made by the Building Commissioner.
If the applicants were residents of Western Australia at the time when BRO No 77 was made then the Building Commissioner clearly had authority (jurisdiction) under s 37 of the BSCRA Act to make that order.
The question which then arises is whether the Building Commissioner ceased to have jurisdiction to deal with the matter of whether BRO No 77 should be revoked and a monetary order made under s 51 of the BSCRA Act once the applicants became residents of New South Wales and the applicants and the respondents were then residents of different States for the purposes of s 75(iv) of the Constitution.
The decision in Burns v Corbett concerned whether NCAT, which is a tribunal similar in nature to this Tribunal, had jurisdiction to deal with a 'matter between residents of different States' for the purposes of s 75(iv) of the Constitution.
The decision in Burns v Corbett was that NCAT did not have such jurisdiction and clearly that decision also applies to this Tribunal. The question is whether the decision in Burns v Corbett also applies to the jurisdiction of Building Commissioner under the BSCRA Act.
In Burns v Corbett at [3], [43], [50], [53] and [60], the majority of the High Court (Kiefel CJ, Bell, Keane and Gageler JJ) made it clear that the jurisdiction of any 'organ' or 'agency' of a State government to adjudicate or determine any of the matters listed in s 75 and s 76 of the Constitution is excluded by Ch III of the Constitution.
In the Oxford English Dictionary Online (2018) 'organ' is defined as meaning '[a] means of action or operation, an instrument; (now) esp. a person, body of people, or thing by which some purpose is carried out or some function is performed'.
In the Tribunal's opinion, the government officer designated under s 85 of the BSCRA Act as the Building Commissioner, for the purposes of the BSCRA Act, is an 'organ' of the government of Western Australia for the purposes of exercising the functions given to the Building Commissioner under the BSCRA Act.
Therefore, in the Tribunal's opinion, the Building Commissioner would not have had jurisdiction under s 51 of the BSCRA Act to deal with the applicants' request for BRO No 77 to be revoked and replaced by a monetary order once the applicants became residents of New South Wales because, at that time, it became a matter between 'residents of different States' for the purposes of s 75(iv) of the Constitution.
The preclusion of the conferral of jurisdiction on the Building Commissioner and the Tribunal in a 'matter between residents of different States' can only be addressed by the Parliament of Western Australia.
It is unfortunate for the applicants (and other persons caught in a similar situation) that, due to the provisions of s 75 of the Constitution and the decision in Burns v Corbett, neither the Building Commissioner nor the Tribunal have jurisdiction under the BSCRA Act where the parties to a building service complaint are, or become, 'residents of different States' (taking into account the principles outlined in [44] of this decision).
The preclusion of the conferral of jurisdiction on the Building Commissioner and the Tribunal, as a result of the decision in Burns v Corbett, to deal with a building service complaint under s 37 and s 38 respectively of the BSCRA Act, or to deal with the revocation of a work order and the making of a monetary order in its place under s 51 of the BSCRA Act when a matter falls within federal jurisdiction under s 75(iv) of the Constitution, because the parties are 'residents of different States', is an issue which can only be addressed by the Parliament of Western Australia.
Orders
(1)The Tribunal has determined, as a preliminary issue, that it does not have jurisdiction to deal with this matter by reason of s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth).
(2)The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as misconceived.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D Aitken, SENIOR MEMBER
2 JANUARY 2019
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