Sunol v Collier

Case [2012] NSWCA 14

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sunol v Collier [2012] NSWCA 14
Hearing dates:31 October 2011
Decision date: 20 February 2012
Before: Bathurst CJ at 1;
Allsop P at 1;
Basten JA at 1
Decision:

(1) Direct that the applicant, within 14 days of the date of this judgment, file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal.

(2) In the event that the applicant does not seek to take such a step, direct that the applicant notify the Court and the Attorney General within the same period, namely 14 days of the date of this judgment.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - tribunals - Administrative Decisions Tribunal - procedure - referral of question of law to Supreme Court - Administrative Decisions Tribunal Act 1997 (NSW), s 118 - whether appropriate for the Supreme Court to answer

CONSTITUTIONAL LAW - federal judicial power - whether Administrative Decisions Tribunal has jurisdiction to determine constitutional questions - whether constitutional questions can arise before the Administrative Decisions Tribunal
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 108, 114, 118
Anti-Discrimination Act 1977 (NSW), ss 91A, 49ZT
Constitution, s 77(iii)
Constitution Act 1902 (NSW), cl 5
Interpretation Act 1987 (NSW), ss 12, 31
Judiciary Act 1903 (Cth), ss 79, 80
Cases Cited: Attorney General (NSW) v Radio 2UE Sydney Pty Ltd [2006] NSWCA 349; 226 FLR 62; 236 ALR 385
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245
British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30
Collier v Sunol [2005] NSWADT 261
Collier v Sunol [2008] NSWADT 339
Felton v Mulligan [1971] HCA 39; 124 CLR 367
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581
South Australia v The Commonwealth [1942] HCA 14; 65 CLR 373
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77
Category:Procedural and other rulings
Parties: John Christopher Sunol - Applicant
Henry William Collier (Estate of the late Henry William Collier) - First Respondent
Administrative Decisions Tribunal, Appeal Panel - Second Respondent
Attorney General of New South Wales - Intervenor
Representation:

Counsel:

Mr N J Owens - Applicant
Submitting appearance - First Respondent
Submitting appearance - Second Respondent
Dr J G Renwick SC/Ms S Cirillo - Intervenor
Solicitors:

AMC Lawyers - Applicant
Gilbert &…

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AGLC
Sunol v Collier [2012] NSWCA 14
Case
[2012] NSWCA 14
Decision Date

CaseChat Overview and Summary

The proceeding before the Supreme Court of New South Wales involved an application by Mr John Sunol against Mr Henry Collier, concerning questions of law referred by the Appeal Panel of the Administrative Decisions Tribunal (ADT) pursuant to section 118 of the *Administrative Decisions Tribunal Act 1997* (NSW). The dispute originated from a complaint lodged by Mr Collier alleging that statements published by Mr Sunol on the internet vilified homosexual people, contravening the *Anti-Discrimination Act 1977* (NSW). Following an ADT decision upholding the complaint in part and a subsequent conciliation agreement, Mr Collier sought to register the agreement. Mr Sunol appealed this registration, seeking to raise constitutional questions regarding the validity of the relevant provisions of the *Anti-Discrimination Act*.

The legal issues before the Supreme Court were whether it was appropriate for the Court to answer the four questions of law referred by the ADT Appeal Panel, and whether the ADT possessed the jurisdiction to determine constitutional questions. The Court was required to consider the nature of federal jurisdiction and the implications of a matter arising under the Constitution or involving its interpretation for the exercise of such jurisdiction.

The Court, in an interim judgment delivered by Basten JA, noted that the ADT Appeal Panel had accepted it lacked jurisdiction to determine the constitutional questions. The Court's reasoning focused on the nature of federal jurisdiction, explaining that a matter involves federal judicial power when, for instance, a defence arises from a Commonwealth law or when the resolution of the matter requires interpreting the Constitution. Once federal jurisdiction is engaged, the entire jurisdiction exercised is federal. The Court indicated that the questions referred by the Tribunal were not in a form suitable for direct answer and that the proceeding required further articulation.

The Court ordered that Mr Sunol, the applicant, must within 14 days of the judgment file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal. If Mr Sunol did not take this step, he was directed to notify the Court and the Attorney General within the same 14-day period.

Orders

Orders of the court

(1) Direct that the applicant, within 14 days of the date of this judgment, file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal.

(2) In the event that the applicant does not seek to take such a step, direct that the applicant notify the Court and the Attorney General within the same period, namely 14 days of the date of this judgment.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT of the COURT delivered by BASTEN JA : This is an interim judgment in a proceeding presently pending in this Court. The proceeding involves four questions of law referred to this Court by the Appeal Panel of the Administrative Decisions Tribunal, pursuant to the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act"), s 118. It is necessary to provide a short history of the procedural steps by which the matter came to this Court. On 25 October 2004, the late Mr Henry Collier lodged a complaint with the Anti-Discrimination Board in relation to a number of statements published by Mr John Sunol on the internet which, according to Mr Collier, vilified homosexual people, in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW). The Equal Opportunity Division of the Tribunal upheld the complaint in part: Collier v Sunol [2005] NSWADT 261. Further proceedings ensued in relation to appropriate relief. In November 2007, a conciliation agreement was executed by the parties, pursuant to which Mr Sunol agreed not to post on any website material referring to homosexual people or homosexuality in a manner which breached relevant provisions of the Anti-Discrimination Act . Believing that Mr Sunol had breached the conciliation agreement, in September 2008 Mr Collier sought to register the agreement. On 22 December 2008 an order was made registering a key provision of the agreement (being cl 3 thereof), pursuant to s 91A of the Anti-Discrimination Act : Collier v Sunol [2008] NSWADT 339. On 21 January 2009 Mr Sunol lodged an appeal against the decision to register the conciliation agreement on the basis of an error of law. That matter came before an Appeal Panel in April 2009. In the course of the proceedings before the Appeal Panel, it became apparent that Mr Sunol sought to raise questions as to the constitutional validity of the provisions of the Anti-Discrimination Act which formed the basis of the registration of cl 3 of the conciliation agreement. Although the Appeal Panel accepted that it had no jurisdiction to determine the constitutional questions, it acceded to Mr Sunol's request to state four questions of law for determination by this Court: Sunol v Collier [2009] NSWADTAP 34. The four questions referred were as follows: The questions referred by the Tribunal arise in a context which needs to be articulated before they can be answered. Relevantly, the context includes the following assumptions: Federal jurisdiction is the authority exercised by a court to determine an issue in federal juridical power. A matter will involve the exercise of federal judicial power if, for example, one party has a defence which owes its existence to a law of the Commonwealth Parliament: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581. The resolution of any matter arising under the Constitution or involving its interpretation will constitute an exercise of federal judicial power: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30. Once such a matter is identified, the whole of the jurisdiction being exercised by the court is federal jurisdiction: Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373. Accordingly, the applicable law must be that identified under Commonwealth law: it may be a State law picked up and applied by a Commonwealth law, such as ss 79 and 80 of the Judiciary Act 1903 (Cth). However, such provisions operate only in respect of federal jurisdiction being exercised by a court of a State or Territory.

Ratio Decidendi

Legal Principle Established

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