Simpson v Andrew Maynard Architects Pty Ltd
[2014] VSC 365
•5 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
S CI 2011 05585
| PHILIP SIMPSON | First Plaintiff |
| MANDY SIMPSON | Second Plaintiff |
| v | |
| ANDREW MAYNARD ARCHITECTS PTY LTD (ACN 117 480 636) | First Defendant |
| PROFIELD PTY LTD (ACN 007 221 856) | Second Defendant |
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JUDGE: | GARDE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2014 | |
DATE OF JUDGMENT: | 5 August 2014 | |
CASE MAY BE CITED AS: | Simpson v Andrew Maynard Architects Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 365 | |
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CONSTITUTIONAL LAW (CTH) – Privative clauses – Validity of grant of jurisdiction to the Victorian Civil and Administrative Tribunal (VCAT) – Jurisdiction of VCAT – Domestic Building Contracts Act 1995 (Vic) s 57 – Chapter III of the Constitution – Domestic building disputes – Decision of the High Court of Australia in Kirk v Industrial Court(NSW) (2010) 239 CLR 531 – System of inferior courts before and since federation – Consumer legislation – Section 57 upheld as valid.
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APPEARANCES: | Counsel | Solicitors |
| No appearance for the Plaintiffs | ||
| No appearance for the Defendants | ||
| For the Attorney-General for the State of Victoria (intervening) | Mr S McLeish SC Solicitor-General and Ms K Walker of Counsel | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
Philip and Mandy Simpson (‘the plaintiffs’) commenced a proceeding in the Supreme Court arising out of a domestic building dispute. Profield Pty Ltd (‘the builder’) sought an order under s 57(2) of the Domestic Building Contracts Act 1995 (Vic) (‘the Act’) staying the proceeding in the Supreme Court on the basis that the proceeding could have been heard in the Victorian Civil and Administrative Tribunal (‘the Tribunal’).
Section 57 of the Act applies if a person starts an action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates’ Court. It provides that the Court must stay any such action on the application of a party to the action if the action could be heard by the Tribunal, and the Court has not heard any oral evidence concerning the dispute itself. If an action is stayed under s 57, any party to the action may apply to the Tribunal for an order with respect to the dispute on which the action was based.
The plaintiffs contended before Daly AsJ that insofar as a State Parliament purports to deprive a State Supreme Court of any jurisdiction that it enjoyed at federation, such a provision is invalid. They relied on Kirk v Industrial Court (NSW)[1] and contended that s 57 is a privative clause that purports to deprive the Supreme Court of Victoria of jurisdiction over claims in contract — a jurisdiction it had at federation — and that as a consequence, s 57 was invalid. The builder contended that s 57 was a valid limitation on the Supreme Court’s jurisdiction.
[1](2010) 239 CLR 531 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Kirk’).
In a preliminary ruling made on 13 November 2013, Daly AsJ accepted the plaintiffs’ submissions and held that s 57 is invalid on the basis that it seeks to limit the jurisdiction of the Supreme Court of Victoria.
On 11 December 2013, Daly AsJ ordered that the builder provide notice of the proceeding to the Attorneys General of the Commonwealth and of the States in accordance with s 78B of the Judiciary Act1903 (Cth) (‘the Judiciary Act’). In view of the importance of the issue, it was considered that the issue should be decided by a judge of the Court.
On 18 March 2014, Daly AsJ referred the following question to a judge of the Court pursuant to r 77.04(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Supreme Court (General Civil Procedure) Rules’):
Is s 57 of the Domestic Building Contracts Act 1995 (Vic) an invalid privative clause by reason of the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531?
Subsequently, the Attorney-General for the State of Victoria (‘the Attorney-General’) intervened in the proceeding under s 78A of the Judiciary Act to contend that s 57 of the Act is valid and that the answer to the question referred is ‘No’. There were no other interveners. In summary, the Attorney-General contends that:
(1) Section 57 is not a privative clause; and the High Court’s decision in Kirk, which concerned a privative clause, does not require the conclusion that s 57 is invalid. To the contrary, the regime within which s 57 operates is entirely consistent with the decision in Kirk.
(2) Chapter III of the Constitution does not require that the Supreme Court of Victoria have original jurisdiction to determine domestic building disputes at first instance. A regime that devolves certain disputes to lower courts and tribunals, whose decisions are subject to supervision by and appeal to the Supreme Court, is constitutionally valid.
On 29 April 2014, the plaintiffs’ solicitor advised the Court that the plaintiffs did not wish to participate in the hearing of the question referred by Daly AsJ. The first defendant’s solicitors advised that it had settled with the plaintiffs some time ago, and remained a party to the proceeding for apportionment purposes only. In the event, no party to the domestic building dispute sought to put a position contrary to that of the Attorney-General.
Relevant legislation
Division 2 of Part 5 of the Act confers jurisdiction and power on the Tribunal to resolve domestic building disputes. It confers original jurisdiction on the Tribunal, within the meaning of s 41 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘the VCAT Act’).
The Act is an example of consumer legislation enacted to provide a level of protection to home owners in relation to domestic building work.[2] It provides for implied warranties, which cannot be excluded, to form part of every domestic building contract, and for the resolution of domestic building disputes chiefly by the Tribunal.[3] It also imposes cooling-off periods after a domestic building contract has been signed, and provides for the resolution of insurance disputes concerning domestic building work by the Tribunal.[4]
[2]According to the VCAT Annual Report for 2012-13, 1,463 claims were finalised by the Tribunal in that year in the Domestic Building List.
[3]Domestic Building Contracts Act 1995 (Vic) ss 8 and 57.
[4]Ibid ss 34 and 59A.
The Act has both purposes and objects. The main purposes of the Act are:[5]
(a)to regulate contracts for the carrying out of domestic building work; and
(b)to provide for the resolution of domestic building disputes and other matters by the Victorian Civil and Administrative Tribunal; and
(c)to require builders carrying out domestic building work to be covered by insurance in relation to that work; and
(d)to amend the House Contracts Guarantee Act 1987, and in particular, to phase out the making of claims under that Act.
[5]Ibid s 1.
The objects of the Act are:[6]
(a)to provide for the maintenance of proper standards in the carrying out of domestic building work in a way that is fair to both builders and building owners; and
(b)to enable disputes involving domestic building work to be resolved as quickly, as efficiently and as cheaply as is possible having regard to the needs of fairness; and
(c)to enable building owners to have access to insurance funds if domestic building work under a major domestic building contract is incomplete or defective.
[6]Ibid s 4.
The Act is expressed to apply to the following work:[7]
[7]Ibid s 5(1).
(a)the erection or construction of a home, including—
(i)any associated work including, but not limited to, landscaping, paving and the erection or construction of any building or fixture associated with the home (such as retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas); and
(ii)the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage to the home or the property on which the home is, or is to be;
(b)the renovation, alteration, extension, improvement or repair of a home;
(c)any work such as landscaping, paving or the erection or construction of retaining structures, driveways, fencing, garages, workshops, swimming pools or spas that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;
(d)the demolition or removal of a home;
(e)any work associated with the construction or erection of a building—
(i)on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act 1987; and
(ii)in respect of which a building permit is required under the Building Act 1993;
(f)any site work (including work required to gain access, or to remove impediments to access, to a site) related to work referred to in paragraphs (a) to (e);
(g)the preparation of plans or specifications for the carrying out of work referred to in paragraphs (a) to (f);
(h)any work that the regulations state is building work for the purposes of this Act.
Various types of building work including work in relation to farm buildings or proposed farm buildings, and buildings intended to be used only for business purposes are excluded from the operation of the Act.[8]
[8]Ibid s 6.
The term ‘domestic building dispute’, is defined:[9]
[9]Ibid s 54.
(1) A domestic building dispute is a dispute or claim arising—
(a) between a building owner and—
(i) a builder; or
(ii)a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an architect—
in relation to a domestic building contract or the carrying out of domestic building work; or
(b) between a builder and—
(i) another builder; or
(ii)a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an insurer—
in relation to a domestic building contract or the carrying out of domestic building work; or
(c) between a building owner or a builder and—
(i) an architect; or
(ii)a building practitioner registered under the Building Act 1993 as an engineer or draftsperson—
in relation to any design work carried out by the architect or building practitioner in respect of domestic building work;
(d)between a lot owner or an owners corporation and an initial owner (within the meaning of section 68 of the Owners Corporations Act 2006) of land in a plan of subdivision in relation to an obligation imposed on the initial owner under section 68(2) of the Owners Corporations Act 2006.
(2)For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury.
…
Section 53(1) provides that the Tribunal may make any order that it considers fair to resolve a domestic building dispute. Section 53(2) sets out a wide range of orders that the Tribunal may make, including orders for the payment of money as damages, variation of the terms of a domestic building contract and orders for the rectification of defective or completion of incomplete domestic building work.
Section 57 provides:
Tribunal to be chiefly responsible for resolving domestic building disputes
(1)This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.
(2)The Court must stay any such action on the application of a party to the action if—
(a)the action could be heard by the Tribunal under this Subdivision; and
(b)the Court has not heard any oral evidence concerning the dispute itself.
(3)This section does not apply to any matter dismissed by the Tribunal under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.
(4)If an action is stayed under this section, any party to the action may apply to the Tribunal for an order with respect to the dispute on which the action was based.
(5)If a person applies to the Tribunal under subsection (4) the Tribunal must notify the Court and on such notification the Court must dismiss the action.
(6)Subsection (5) does not apply if the Tribunal refers the matter to the Court under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998.
Section 134 provides:
It is the intention of section 57, as amended by section 38 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, to alter or vary section 85 of the Constitution Act 1975.
Section 85 of the Constitution Act 1975 (Vic) (‘the Constitution Act’) provides for the jurisdiction of the Supreme Court and deals with the way in which the Court’s jurisdiction may be limited. Section 57 of the Act was passed in accordance with s 85(5) of the Constitution Act. Section 134 of the Act contains the necessary statement of intent under s 85(5)(a). The procedure prescribed by s 85(5)(b) and (c) was followed when the Bill for the Act was introduced into each House.[10]
[10]See Victoria, Parliamentary Debates, Legislative Assembly, 24 October 1995, 697 (Jan Wade, Attorney-General); Victoria, Parliamentary Debates, Legislative Council, 15 November 1995, 541 (Rob Knowles, Minister for Housing).
Second reading speech for the Domestic Building Contracts and Tribunal Bill 1995
In the second reading speech for the Domestic Building Contracts and Tribunal Bill 1995, the Attorney-General said:[11]
[11]Victoria, Parliamentary Debates, Legislative Assembly, 24 October 1995, 695 (Jan Wade, Attorney General).
The reforms contained in this bill constitute a comprehensive and integrated package comprising: first, a domestic building disputes tribunal, providing a means by which builder and consumer disputes can be expeditiously and inexpensively handled at any stage of the building process or after;
…
The bill proposes the establishment of a Domestic Building Tribunal to resolve all domestic building disputes …
…
The tribunal will be non-legalistic and will deal with matters quickly and at minimal cost …
The tribunal is to be established as a single point for the resolution of all domestic building disputes and courts will be required to refer matters brought before them to the tribunal for consideration unless the parties to the dispute explicitly request that the matter be dealt with by the courts.
…
It is fair to conclude that the Act:
(a)establishes a tribunal to resolve domestic building disputes between builder and consumer;
(b)provides for the resolution of those disputes expeditiously and inexpensively;
(c)provides for the tribunal to resolve all domestic building actions at first instance unless the action is referred by the tribunal to the courts; and
(d)stays domestic building actions issued in courts so that parties can apply to the tribunal for orders with respect to the dispute on which the action is based.
Is s 57 of the Act a privative clause?
A privative clause is a statutory provision that seeks to remove a court’s jurisdiction to review decisions of a tribunal or public official.[12] Section 57 is of a different character – it is a provision intended by Parliament to determine how domestic building disputes will be heard at first instance. It does not prevent review of any tribunal decision or the decision of any public official. While it is aimed at ensuring that domestic building disputes are heard by the Tribunal, it does not protect the Tribunal’s decision from either appeal to, or judicial review by the Supreme Court. This is clear from the jurisdiction conferred by Parliament on the Supreme Court to supervise and oversight decisions of the Tribunal:
[12]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 483 [7] (Gleeson CJ).
(1) Section 148 of VCAT Act provides for appeals, by leave, on questions of law from the Tribunal to the Supreme Court of Victoria. Section 148 of the VCAT Act authorises the Supreme Court of Victoria to hear and determine appeals from the Tribunal in relation to any matter heard under s 57 of the Act, as with all of the other jurisdictions conferred by law on the Tribunal.
(2) Under s 77(3) of the VCAT Act, the Tribunal is able to refer a proceeding in relation to a domestic building dispute to the Supreme Court if it considers the Court is a more appropriate forum.
(3) The Tribunal may also refer a question of law arising in a domestic building dispute to the Supreme Court under s 96 of the VCAT Act.
(4) Judicial review of Tribunal decisions in relation to domestic building disputes is available under s 85(1) of the Constitution Act and O 56 of the Supreme Court (General Civil Procedure) Rules,[13] and pursuant to the Administrative Law Act 1978 (Vic) (‘the Administrative Law Act’).[14] Section 57 does not limit or seek to limit the jurisdiction given to the Supreme Court of Victoria by any of these review provisions.
[13]See, eg, Hoe v Manningham City Council [2013] VSC 195 (Kyrou J).
[14]See, eg, Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (2001) 18 VAR 411, 413 [9] (Ashley J) (Leave to appeal refused in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (2003) 126 LGERA 445).
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[15] the majority of the High Court described s 148 of the VCAT Act as concerned “with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal.” The provision conferred original jurisdiction in the nature of judicial review, and was not part of the Supreme Court’s appellate jurisdiction. However “that is not to say that there are no other avenues for judicial review”, as the VCAT Act had no express provision excluding the general supervisory jurisdiction of the Supreme Court.[16] Subsequently in Osland v Secretary to the Department of Justice (No 2),[17] the High Court confirmed that s 148 conferred judicial power to examine for error what has been done in an administrative tribunal, and that this power was part of the Supreme Court’s original jurisdiction in the nature of judicial review.
[15](2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ).
[16]Ibid.
[17](2010) 241 CLR 320, 331-2 [18] (French CJ, Gummow and Bell JJ), 351 [71] (Hayne and Kiefel JJ), 355 [88] (Heydon J).
The supervisory jurisdiction of the Supreme Court to review decisions of the Tribunal is extensive, and in common use. It extends to review on a question of law, if leave is granted by the Supreme Court. It extends to the remedies provided by the Administrative Law Act, as well as the prerogative relief available under O 56 of the Supreme Court (General Civil Procedure) Rules. By statute, the supervisory jurisdiction of the Court has been made significantly more extensive than the relief available in the inherent jurisdiction of the Court.[18]
[18]See [22] above.
Section 57 of the Act is directed at identifying the jurisdiction in which first instance proceedings are to be heard and determined. Such provisions are essential in a judicial system that includes inferior courts and tribunals with different jurisdictional limits. There are various provisions in Victorian statutes directed at ensuring that proceedings at first instance are heard and determined in the appropriate forum.
Some statutory provisions may remove from the Supreme Court its jurisdiction in tort and contract in certain areas. The Accident Compensation Act1985 (Vic) replaced damages for injury in the course of employment with a statutory accident compensation system, and thus removed from the Supreme Court jurisdiction in relation to tort and contract in such matters. The Transport Accident Act 1986 (Vic) has a similar role in relation to transport accidents. The Residential Tenancies Act 1997 (Vic) defines the rights and duties of landlords and tenants of rented residential premises, and provides for disputes to be resolved by the Tribunal subject to various jurisdictional limits.[19] The Retail Leases Act 2003 (Vic) confers jurisdiction on the Tribunal to resolve retail tenancy disputes, and limits that of the Supreme Court at first instance.[20] Proceedings arising wholly or predominantly from a consumer and trader dispute or other proceedings in which the Tribunal has jurisdiction under the Australian Consumer Law and Fair Trading Act 2012 (Vic) must be stayed if the court is satisfied that the proceedings could be brought in the Tribunal and would more appropriately dealt with by the Tribunal.[21]
[19]Residential Tenancies Act 1997 (Vic) ss 447, 448, 509 and 510.
[20]Retail Leases Act 2003 (Vic) s 89.
[21]Australian Consumer Law and Fair Trading Act 2012 (Vic) s 188.
As a matter of statutory construction it is “presumed that a State parliament does not intend to cut down the jurisdiction of the Supreme Court of that State over matters of a kind ordinarily dealt with by the State Supreme Courts and which, if dealt with by those Courts, are amenable to the appellate jurisdiction of this Court under s 73 of the Constitution.”[22] However, here s 57 expressly states by clear words that certain matters are to be heard, at first instance, by the Tribunal.
The High Court’s decision in Kirk
[22]Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180, 194 [33] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ).
In Kirk, the High Court considered the operation of s 179(1) of the Industrial Relations Act1996 (NSW). That section provided that a decision of the New South Wales Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal”. Section 179(5) extended the scope of the privative clause to include “proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise”.
The joint judgment in Kirk observed that, in relation to State legislation, “it is necessary to take account of the requirement of Ch III of the [Commonwealth] Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”.[23]
[23]Kirk (2010) 239 CLR 531, 580 [96].
The judgment observed:[24]
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.
… To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. … And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
[24]Ibid 580-1 [98]-[99].
The judgment in Kirk followed the decision of the High Court in Kable v DPP (NSW),[25] where the expression ‘Supreme Court of a State’ was stated by Gummow J to be a constitutional expression the characteristics of which were incapable of detraction or impairment by legislation.[26] The doctrine was taken further in Forge v ASIC where Gleeson CJ considered that State Supreme Courts must satisfy minimum requirements of independence and impartiality and “must continue to answer the description of ‘Courts’”.[27] Gummow, Hayne and Crennan JJ considered that the defining characteristics that give rise to the institutional integrity of a court must be preserved.[28] The doctrine was developed in the context of privative clauses in Plaintiff S157/2002 v Commonwealth which concerned privative clauses enacted by the Commonwealth Parliament.[29]
[25](1996) 189 CLR 51 (Brennan CJ, Dawson, Toohey, McHugh, Gaudron and Gummow JJ).
[26]Ibid 143.
[27](2006) 228 CLR 45, 67 [41].
[28]Ibid 76 [63]-[64].
[29](2003) 211 CLR 476 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
The decision in Kirk was directed at a privative clause purporting to oust the supervisory jurisdiction of a State Supreme Court. The reasoning refers to the institutional or systemic features of the jurisdiction of the Supreme Courts of the States at federation. The Court was concerned to avoid “islands of power immune from supervision and restraint”.[30] The decision in Kirk did not hold that Chapter III of the Constitution preserves for a State Supreme Court all jurisdiction that Court possessed at federation. To the contrary, as the joint judgment observed, “at least since federation, the State Supreme Courts have not been courts of unlimited jurisdiction”.[31]
[30]Kirk (2010) 239 CLR 531, 581 [99].
[31]Ibid 583 [107].
System of inferior courts at federation
In Victoria, as in New South Wales, South Australia, Tasmania and Western Australia, at and prior to federation, there was an established system of inferior courts. In Victoria, the jurisdiction of the County Court included “[a]ll actions of ejectment in which the value of the premises, the possession whereof is sought to be recovered, does not exceed £50 a year or where the rent (exclusive of ground rent) does not exceed that sum”, and “[a]ll such actions of tort as may be remitted by the Supreme Court upon the affidavit of the defendant that the plaintiff has no visible means of support” as well as other heads of jurisdiction.[32]
[32]Edward Jenks, The Government of Victoria (Australia) (Macmillan and Co, 1891) 351; County Court Act 1890 (Vic) ss 48, 51, 119; J.M. Bennett and Alex C Castles, A Source Book of Australian Legal History (Law Book Co Ltd, 1979) 156-162.
The Court of Petty Sessions in Victoria at federation had jurisdiction including jurisdiction to determine claims for the restitution of goods alleged to be illegally detained, where the value of the goods did not exceed £50, and actions for “civil debts recoverable summarily” where the sum claimed did not exceed £50.[33] In Victoria, there were also inferior courts with specialist jurisdiction. The jurisdiction of the Court of Mines extended generally to all questions and disputes in law or equity arising between miners in relation to mining on Crown Lands. The Court of Mines also heard appeals from mining wardens who were appointed for districts.[34] There was also a Court of Insolvency, of which judges of the County Court were ex officio members, and a Vice-Admiralty Court created by Imperial statute, but in the event of vacancy occupied ex officio by the Chief Justice with power to appoint a registrar or marshal with the approval of the Governor.[35]
What did Kirk decide?[36]
[33]Jenks, The Government of Victoria (Australia) (Macmillan and Co, 1891) 356.
[34]Ibid 360-2.
[35]Ibid 322-4.
[36]See generally the articles by Wendy Lacey, ‘Kirk v Industrial Court of New South Wales Breathing life into Kable’ (2010) Melbourne University Law Review 641 and Alexander Vial, ‘The minimum entrenched supervisory review jurisdiction of State Supreme Courts: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531’ (2010) 32 Adelaide Law Review 145.
Kirk confirms the constitutional function of State Supreme Courts in the Australian judicial system by requiring that, when original jurisdiction is vested in inferior courts or tribunals the exercise of jurisdiction by inferior courts and tribunals is itself subject to the Supreme Court’s supervisory jurisdiction. Kirk did not decide that Chapter III of the Constitution precludes a State Parliament from removing original jurisdiction from the Supreme Court in relation to common law claims such as tort or contract and vesting that jurisdiction in inferior courts or tribunals.
This view of Kirk is supported by the decision in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia.[37] That case concerned provisions in the International Arbitration Act1974 (Cth), which provided for the enforcement of an arbitral award in the Federal Court. The International Arbitration Act precluded the Federal Court from refusing to enforce an award on the ground of error of law on the face of the record. Prior to federation, the common law courts could set aside an arbitral award for error of law on the face of the record, and it was argued that to preclude the Federal Court from doing so undermined the institutional integrity of the Federal Court as a court exercising the judicial power of the Commonwealth. The High Court rejected that argument. In so doing, French CJ and Gageler J observed that:[38]
The common law rule that an arbitral award could be set aside for error of law on the face of the award therefore formed no part of, and bore no meaningful resemblance to, the supervisory jurisdiction of the Supreme Court of a State to set aside an exercise of administrative or judicial power for jurisdictional error. It served no systemic end, and was a “defining characteristic” neither of judicial power nor of any court.
[37](2013) 295 ALR 596.
[38]Ibid 608 [39] (citation omitted).
Conclusion
Subject to Chapter III of the Constitution, State legislatures have power to legislate in respect of their judicial system as they see fit.[39] Again subject to Chapter III, the organisation and structure of Courts that existed at the time of federation may be abolished (other than the Supreme Court[40]), or amended, new courts and tribunals may be created and the limits of the jurisdiction of the various courts and tribunals may be determined.[41] State judicial power may be conferred on administrative tribunals such as the Tribunal.
[39]Harris v Caladine (1991) 172 CLR 84, 92 (Mason CJ and Deane J); Forge v ASIC (2006) 228 CLR 45, 75 [61] (Gummow, Hayne and Crennan JJ).
[40]Kable v DPP (NSW) (1996) 189 CLR 51, 102-3 (Gaudron J), 110-1 (McHugh J), 141-2 (Gummow J).
[41]Le Mesurier v Connor (1929) 42 CLR 481, 496 (Knox CJ, Rich and Dixon JJ); Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49, 58 (Gibbs CJ), 61-2 (Mason J), 74-7 (Brennan J).
It is constitutionally permissible for a State Parliament to establish a judicial system whereby certain kinds of proceeding — whether identified by subject matter or by monetary limit — are to be determined by inferior courts or tribunals, provided that the decisions of the inferior courts or tribunals remain subject to the oversight and supervision of the Supreme Court and ultimately the High Court.
It is not a defining characteristic of a State Supreme Court that it retains jurisdiction in relation to all contractual disputes to the exclusion of inferior courts and tribunals. There have been inferior courts or tribunals exercising limited jurisdiction in contractual disputes and many other matters before and since federation. Rather, the defining characteristics referred to in Kirk are characteristics that serve a systemic end directed to ensuring that there are no islands of power immune from the supervision of the Supreme Court and, ultimately the High Court, in appeals under s 73 of the Constitution.
As a result, the question referred to a judge of the Court by Daly AsJ on 18 March 2014 is answered ‘No’. Section 57 of the Act is not a privative clause, and is not invalid by reason of the decision of the High Court in Kirk.