Sunol v Collier

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.