Gaynor v Attorney General of New South Wales

BELL P: For some years, Mr Bernard Gaynor (Mr Gaynor), who lives in Queensland, and Mr Garry Burns (Mr Burns), who lives in New South Wales, have been involved in a series of disputes. In the words of Harrison J (the primary judge), Mr Gaynor is a conservative blogger focussing on issues regarding national security, politics and the defence of the traditional family unit whilst Mr Burns is a self-described gay Australian anti-discrimination campaigner. Each of these men maintains a website which they employ to publicise their respective opinions.

Mr Burns has since May 2014 made a large number of complaints to the President of the Anti-Discrimination Board (the Board) pursuant to the Anti-Discrimination Act 1977 (NSW) (the ADA) in relation to statements made by Mr Gaynor. Some 23 of these complaints were referred by the President of the Board to the New South Wales Civil and Administrative Tribunal (NCAT) pursuant to s 93C of the ADA.

In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns (HC)), in dismissing a series of appeals from this Court, including one brought by Mr Burns against Mr Gaynor (see Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 (Burns (NSWCA)), the High Court held that ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) were invalid to the extent that they purported to confer jurisdiction upon NCAT, in circumstances where the complainant and the respondent to the relevant complaint were “residents of different States” within the meaning of s 75(iv) of the Commonwealth Constitution (the Constitution).

In the plurality judgment, Kiefel CJ, Bell and Keane JJ emphasised that “adjudicative authority in respect of the matters listed in ss 75 and 76 of the Constitution may be exercised only as Ch III contemplates and not otherwise” and that “[t]he express provision for the exercise of adjudicative authority through courts capable of inclusion as components of the federal Judicature identified by ss 71 and 77 leaves no room for the possibility of an adjudication of any of the matters listed in ss 75 and 76 by an organ of the government which is not a court of a State that may become a component of the federal Judicature”: at [43] and [58]. Gageler J also found that Ch III of the Constitution carried with it a negative implication that precluded the conferral of diversity jurisdiction on a state tribunal. (The other members of the Court reached the same result, but via the operation of s 39 of the Judiciary Act 1903 (Cth) in conjunction with s 109 of the Constitution, the same route that had commended itself to Leeming JA in Burns (NSWCA).)

Prior to the hearing in the High Court, the New South Wales Parliament passed the Justice Legislation Amendment Bill (No 2) 2017 (NSW) which introduced a new Part 3A into the NCAT Act which sought to address the constitutional deficiencies which had been identified in Burns (NSWCA). In their judgment, the plurality in the High Court said (see Burns (HC) at [11]) that:

The High Court delivered its decision on 18 April 2018.

Reference should also be made at this point to Attorney General (NSW) v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 (Gatsby), in which it was declared that NCAT was not a “court of a State” for the purpose of Ch III of the Constitution and s 39 of the Judiciary Act. In this respect, it was held by Leeming JA (at [297]-[299]), with whom Beazley P and McColl JA agreed (at [197] and [205]), that the insertion of Part 3A into the NCAT Act by the Justice Legislation Amendment Act (No 2) 2017 (NSW) was a clear legislative statement that NCAT was not a “court of a State” for the purpose of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. As Leeming JA said, “[t]he premise of the legislation is that NCAT lacks authority to determine ‘diversity proceedings’, which is to say, it is not a court for the purposes of s 77(iii)”: at [299]. Where a court or a tribunal lacks “authority to determine” a matter or, as the plurality put it in Burns (HC), “adjudicative authority”, it lacks jurisdiction: see, generally, M Leeming, Authority to Decide: the Law of Jurisdiction in Australia (2nd ed, 2020, The Federation Press); see also CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [24]-[31] (CGU).

On 3 April 2018, by way of three separate Summonses filed in the Local Court of New South Wales (the Local Court), Mr Burns sought leave pursuant to s 34B of the NCAT Act (a key provision of the new Part 3A of that Act) to bring proceedings in that Court. . Each of the Summonses cross-referenced an application that had previously been made to NCAT, each application in turn relating to some of Mr Burns’ complaints that had originally been made to the President of the Board but which were referred by the President to NCAT (see [2] above). The Summonses each stated that leave to commence was sought “because the Application involved the exercise of the federal diversity jurisdiction and the Tribunal [NCAT] does not have jurisdiction”.

On 26 July 2018, Mr Gaynor commenced proceedings in the Administrative List of the Common Law Division of this Court (the Administrative List Proceedings) which involved, at their centre, a further constitutional challenge to Part 3A of the NCAT Act. (Part 3A had been the subject of a further minor amendment after the High Court’s decision in Burns (HC) which entailed changing references from “diversity jurisdiction” to “federal jurisdiction” so as more completely to reflect the point of constitutional principle determined by the High Court: see Justice Legislation Amendment Act (No 3) 2018 (NSW) Sch 1, cl 1.6). Mr Gaynor sought a variety of orders in the Administrative List Proceedings including that the Local Court proceedings in which Mr Burns had sought leave pursuant to s 34B of the NCAT Act were void and of no effect.

None of the four parties named as defendants in the Administrative List Proceedings, namely the Local Court, NCAT, the President of the Board and Mr Burns, participated in the hearing at first instance or, indeed, in this appeal, all filing submitting appearances. The Attorney General of New South Wales was the only active contradictor, having intervened in response to a Notice of a Constitutional Matter issued on 13 November 2018, pursuant to s 78B of the Judiciary Act.

The primary judge dismissed Mr Gaynor’s challenge (see Gaynor v Local Court of New South Wales [2019] NSWSC 805), stating at [30] that there was:

Mr Gaynor wishes to challenge that decision and a preliminary question arises as to whether he may only do so following a grant of leave to appeal by this Court.

Mr Gaynor initially filed a Notice of Appeal from the primary judgment. In a directions hearing after the Notice of Appeal had been filed, the issue as to whether or not leave to appeal was required was raised. Without conceding that it was, Mr Gaynor subsequently also filed a Summons seeking leave to appeal from the primary judge’s decision and addressed the question of leave in his written submissions.

It was submitted on behalf of Mr Gaynor that leave to appeal was not necessary because, it was said, there were four underlying complaints “each claiming $100,000 in 3 summons matters that comprised the appeal”. In other words, it was submitted that s 101(2)(r) of the Supreme Court Act 1970 (NSW) was satisfied. That section relevantly provides:

In Maynes v Casey [2011] NSWCA 156 at [7] (Maynes v Casey), Basten JA (with whom Allsop P agreed) said of this section that:

Plainly enough, the onus rests upon the party seeking to appeal to satisfy the court that the amount in issue meets the $100,000 threshold under Supreme Court Act s 101(2)(r) by demonstrating that a successful appeal would improve its entitlement by at least that amount. Thus, in BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150], Campbell JA said that it was:

In Jardin v Metcash Ltd (2011) 214 IR 448; [2011] NSWCA 409 at [26], Campbell JA made reference to the need for an “evidentiary basis” to establish the $100,000 threshold. The need to adduce or to be able to point to evidence to satisfy this threshold (rather than simply relying on assertion or the jurisdictional limit of the court) is exemplified by Breen v Clough [2018] NSWCA 172 at [35]-[40]. So much is also illustrated by the fact that the existence of a right of appeal depends on the value of the matters realistically in contest in the appeal, as distinct from the substantive relief formally claimed: Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [11].

This Court in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80] summarised the key principles which emerge from the case law in relation to the requirements as set out in s 101(2)(r) of the Supreme Court Act. They relevantly included the following:

To this summary of principles may be added the fact that, where multiple proceedings have been heard together, without formal consolidation, and involve amounts which do not individually reach the $100,000 threshold but do pass it when the value of the amounts “truly at issue” are aggregated, the Court of Appeal has taken the view that s 101(2)(r) is satisfied such that leave is not required if the matters are capable of being consolidated (Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52 at [6]). Alternatively, a grant of leave will more readily be given if there are multiple proceedings which it is sought to be heard together where the aggregate value of what is in substance at stake exceeds $100,000: Toyota Finance Australia Limited v Gardiner [2016] NSWCA 162 at [37]; see also NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [23]-[24]. So, also, where a matter involves several different claims, the requisite value threshold may be satisfied by the combined effect of the reasonably arguable appeal claims: Jensen v Ray [2011] NSWCA 247 at [13]-[14]. In that case, the threshold was held to be satisfied by the combination of the economic benefit of being freed from a share of liability for a mortgage debt and the receipt of a monetary sum on the assumption that the reasonably arguable case succeeded.

Ordinarily, leave to appeal to the Court of Appeal in matters involving small claims is limited to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: see, for example, Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 (Carolan); Joo v Yoo [2016] NSWCA 172 at [35]. In Carolan, Cole JA noted the desirability that, where small claims are involved, there be “early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute”; see also Berry v Nicholls [2016] NSWCA 272 at [7].

The three Summonses referred to in Mr Gaynor’s submissions (see [13] above) were Summonses that had been filed by Mr Burns in the Local Court following an order made by NCAT on 23 February 2018 (the 23 February 2018 Order), to the effect that it declined to determine various applications on the basis that the determination of each of those applications by NCAT would involve the exercise of federal diversity jurisdiction. There were 10 such applications, each of which had been given a separate case number before the Tribunal.

Such an order was consistent with the observation by Brennan J, sitting in his capacity as President of the Administrative Appeals Tribunal, that an administrative body, although judicially unable to pronounce upon the limits of its authority, is nonetheless competent to consider the legal limits of its authority and to mould its actions accordingly, that competence being implied from its duty not to exceed the authority conferred by law upon it: Re Adams and Tax Agents’ Board (1976) 7 ATR 87 at 89, (1976) 12 ALR 239 at 242; see also Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [192]; Coshott v Spencer [2017] NSWCA 118 at [48]-[49]; Gatsby at [281].

NCAT noted in its 23 February 2018 Order that the applicant, Mr Burns, had stated that “he intends to apply to an authorised court under s 34B of the Civil and Administrative Tribunal 2013 (NSW) to determine these applications”. Notwithstanding this, it would appear that it was only in respect of three of the ten applications that Mr Burns initiated proceedings in the Local Court.

The Summonses and the proceedings to which they relate have not been dealt with by the Local Court, but have been stayed pending Mr Gaynor’s application in the Administrative List Proceedings in which he seeks, amongst other orders, a declaration that the Local Court proceedings are “void and of no effect”.

The three Summonses that were in evidence before the Court did not reveal on their face the value of the underlying claims to which they related, nor were any of the applications, including those cross-referenced in the Summonses and which NCAT declined to determine, before the Court. There was therefore no material before the Court which would allow the jurisdictional threshold for an appeal as of right to be assessed or satisfied.

In argument, Mr King, who appeared for Mr Gaynor, pointed out that the Local Court’s monetary jurisdiction extended to claims for up to $100,000 (as did that of NCAT under the jurisdiction conferred on it in relation to matters referred to it under the ADA: see ADA s 108(2)(a)). However, the existence of these jurisdictional limits says absolutely nothing as to the value of the claims to which the proceedings related.

Mr King also pointed to other complaints that had evidently been made by Mr Burns in relation to conduct by Mr Gaynor, but which had not resulted in the making of any application to the Local Court under s 34B of the NCAT Act. An inference was available from the fact that Mr Burns had only filed Summonses in respect of three of the ten applications the subject of the 23 February 2018 Order that he had decided not to pursue the balance of his complaints but, even if this were not the case, the Court had before it no evidence as to the value of any of these other complaints. Had such evidence been available, it would have been open to aggregate the value of these three complaints for the purposes of determining whether or not the monetary threshold set by s 101(2)(r) had been satisfied: see [19] above.

Finally, Mr King referred to an affidavit setting out various costs and expenses that his client had incurred in dealing with complaints made against him by Mr Burns, including in earlier litigation in this Court and the High Court. This evidence was not relevant to the satisfaction or otherwise of the requirements of s 101(2)(r) of the Supreme Court Act: see, eg, Gurr v Robinson (NSWCA, 10 February 1986, unrep); Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 at [35].

In my opinion, Mr Gaynor has failed to demonstrate that the value of the matters realistically in contest exceeds the statutory threshold specified in s 101(2)(r) of the Supreme Court Act, with the consequence that leave to appeal is required.

For the reasons expressed more fully below, I would not grant leave to appeal. I see no error in the reasoning of the primary judge in relation to the matters that were argued before him. To the extent that Mr Gaynor seeks to raise in this Court for the first time arguments that were not made before the primary judge, in particular in relation to s 117 of the Constitution, these arguments were not formulated as grounds in the Further Amended Notice of Appeal and, to the extent that they were advanced in written submissions, those submissions were exiguous and rose no higher than the tentative assertion that Part 3A of the NCAT Act “arguably” in some way infringed s 117 of the Constitution (see further at [71]-[77] below).

Before considering the arguments advanced in support of leave to appeal, it is necessary to set out the relevant statutory provisions the subject of Mr Gaynor’s argument.

Part 3A of the NCAT Act provides as follows:

It is also necessary to note certain provisions of the ADA, bearing in mind that the applications which NCAT declined to determine in its 23 February 2018 Order, three of which are the subject of the three Local Court Summonses, began their life as complaints to the Board (see [2] above).

Section 93C of the ADA relevantly provides:

Section 39 of the NCAT Act provides that such a referral constitutes an application to the Tribunal. That section provides:

Clause 10 of Sch 3 to the NCAT Act provides that:

Returning to the ADA, where a complaint is referred to NCAT by the President of the Board, NCAT is invested with certain powers by Division 3 of Part 9, and is authorised to grant certain interim orders (ADA s 105) and to dismiss or find the complaint is substantiated in whole or in part: ADA s 108(1). Section 108(2) of the ADA further authorises the awarding of damages, injunctive relief, the publication of an apology and/or a retraction, the development and implementation of a program or policy aimed at eliminating unlawful discrimination (in the case of a substantiated vilification complaint) or the declaring void of any contract made in contravention of the ADA.

It is against the background of these statutory provisions that the arguments which Mr Gaynor seeks to make fall to be considered.

Mr Gaynor’s proposed grounds of appeal were as follows:

Proposed ground 4 was expressly abandoned in the course of oral submissions. The remaining proposed grounds were addressed in the course of argument under three broad headings which for convenience I will style:

The first argument was that s 34B(1) of the NCAT Act gave “a person with standing” an option to seek the leave of an authorised court to proceed in that court, but left such a person with the alternative of proceeding in NCAT. The submission seemed to be that s 34B(1) of the NCAT Act involved a conferral of diversity jurisdiction on NCAT, or at least impliedly recognised that it continued to be invested with such a jurisdiction. It was also put in written submissions that Part 3A of the NCAT Act “purported to confer federal diversity jurisdiction in respect of vilification complaints under the [ADA] Part 4C.4 on the Local Court”.

These submissions should be rejected for a number of reasons.

First, s 34B(1) confers a right on a “person with standing”. It does not confer or purport to confer jurisdiction on either the “authorised court” or NCAT. Diversity jurisdiction (and federal jurisdiction more generally) is conferred on the Local Court by s 39 of the Judiciary Act with the Commonwealth Parliament’s power in this regard deriving from s 77(iii) of the Constitution.

Second, and axiomatically, in relation to State courts (at least since the passage of s 39 of the Judiciary Act) and, in relation to State tribunals (by implication derived from Ch III of the Constitution: see Burns (HC) per Kiefel CJ, Bell, Keane and Gageler JJ), diversity jurisdiction and federal jurisdiction more generally may not be conferred either on a State court or a tribunal by State legislation.

In Gould v Brown (1998) 193 CLR 346 at 377; [1998] HCA 6 at [13], Brennan CJ and Toohey J referred to R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10 as authority for the proposition that Ch III of the Constitution was “the only source of power to vest federal jurisdiction and federal judicial power”, and that “[t]he exclusivity of the legislative power conferred by Ch III to vest federal jurisdiction in Ch III courts including courts created by a State has been repeatedly affirmed”: at [16]; see also Burns (NSWCA) at [18]. As Gageler J has observed, “[f]ederal jurisdiction is authority to adjudicate that is derived from the Constitution or a Commonwealth law”: Burns (HC) at [71]; see also Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [57] (Rizeq).

Whilst it is correct that s 34C(3) of the NCAT Act refers to the “jurisdiction and functions” of an authorised court, providing that:

Third, the whole of Part 3A of the NCAT Act was introduced precisely because of the recognition, after this Court’s decision in Burns (NSWCA), that diversity jurisdiction could not be exercised by NCAT. The submission advanced on behalf of Mr Gaynor that Part 3A involved some conferral of federal diversity jurisdiction on NCAT by Parliament, or contemplated, notwithstanding Burns (NSWCA), that NCAT could still exercise diversity jurisdiction, must be rejected. As the Attorney General said in the Second Reading Speech to the Justice Legislation Amendment Bill (No 2) 2017 (NSW) (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 September 2017 at 200-1):

The Attorney General’s reference in the second reading speech to the provision to affected parties of a forum, being either the Local or District Court of New South Wales, was a recognition that NCAT was not an available forum for the adjudication of diversity suits after this Court’s decision in Burns.

Contrary to a submission advanced on behalf of Mr Gaynor, the fact that in Burns (HC), the plurality and Gageler J followed a different route to that which had been taken by this Court to arrive at the same conclusion as to NCAT’s constitutional inability to resolve a diversity suit (see [4] above) does not affect the analysis. In other words, nothing turns on the fact that Part 3A was enacted in response to this Court’s decision in Burns and not the High Court’s later decision in which different constitutional reasoning was employed by the plurality and Gageler J.

Fourth, the reference in s 34C(3) of the NCAT Act to the authorised court having and being able to exercise all of the jurisdiction and functions that NCAT “would have had if it could exercise federal jurisdiction” is a powerful textual indication that the legislation recognised that NCAT could not exercise federal jurisdiction. The submission that s 34B(1) amounted to a conferral or implicit recognition of the existence of such jurisdiction in NCAT simply cannot sit with the words I have highlighted from s 34C(3), even if it were possible for federal jurisdiction to be conferred by a state legislature (which of course it is not, as explained at [44]-[45] above).

Fifth, and in the same vein, s 34B(5) of the NCAT Act, in providing that, instead of or after granting leave, “[a]n authorised court may remit an application or appeal to the Tribunal to determine the application or appeal if the court is satisfied that the Tribunal has jurisdiction to determine it”, is a statutory recognition that NCAT may not exercise federal jurisdiction and is invested with no such jurisdiction. If an authorised court faced with an application for leave comes to the view that, in any given case, there is not in fact diversity of parties within the meaning of s 75(iv) of the Constitution (see Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290; [1922] HCA 50), then NCAT will be able to determine the dispute on a remitter as, ex hypothesi, federal jurisdiction will not have been engaged. In such a case, no constitutional impediment is presented by the fact that NCAT is not a court.

Sixth, not only does s 34B(1) not involve any investiture in, nor permit exercise of federal jurisdiction by, NCAT, it does not in fact require NCAT to do anything. In this context, Mr King submitted that there were other provisions in the ADA that authorised NCAT to exercise jurisdiction in a diversity matter, notwithstanding Part 3A of the NCAT Act. He made reference in this regard to ss 105 and 108 of the ADA (see [37] above). These sections do not, on their proper construction, authorise NCAT to do anything in a matter involving federal jurisdiction.

In this respect, Mr King’s submission overlooked s 31(1) of the Interpretation Act 1987 (NSW) which requires that “[a]n Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament”. The submission was also inconsistent with the “initial presumption” of statutory interpretation which Isaacs J described in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 180; [1926] HCA 58, namely that “Parliament did not intend to pass beyond constitutional bounds.” It is well established that legislation should be construed, so far as is possible, by reference to that presumption: see also Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 545; Attorney-General (Vic) v Commonwealth (the Pharmaceutical Benefits case) (1945) 71 CLR 237 at 267; [1945] HCA 30 per Dixon J and Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 14; [1992] HCA 64 per Mason CJ.

In my opinion, the powers conferred on NCAT by ss 105 and 108 of the ADA may, on the proper construction of those sections, only be exercised within constitutional limits. They are not a source of authority for the exercise of diversity jurisdiction by NCAT.

I should also record the fact that a submission was originally advanced in writing, then abandoned orally but then reinstated, that the referral to NCAT by the President of the Board of a complaint by a resident of one state against a resident of another state pursuant to s 93C of the ADA also involved an impermissible exercise of federal jurisdiction by a non-Chapter III court. In my opinion, this purely administrative act does not involve any exercise of adjudicative authority. Indeed, viewed from the perspective of the President of the Board, the act of referral might fairly be considered to be the antithesis of the exercise of adjudicative authority.

The primary judge was correct to conclude that “the Local Court is not exercising the, or a, jurisdiction that has been inappropriately or, in constitutional terms, impermissibly conferred upon it”: at [29]. As the primary judge put it at [30]:

For the above reasons, I would refuse leave to appeal in respect of the constitutional validity argument.

Mr King’s second substantive argument was that reflected in ground 4A of the Further Amended Notice of Appeal which was expressed in the following terms:

In his written submissions, Mr King accepted that the Local Court had federal jurisdiction, “but only in respect of matters that arise in whole or as to a material part [within] New South Wales”. The submissions refer to “outside” rather than “within” New South Wales, but the context of the submissions indicates that their author must have meant “within”. This is because of the reliance placed, both within those submissions and in ground 4A of the Further Amended Notice of Appeal to s 34 of the Local Court Act 2007 (NSW). That section relevantly provides:

The argument advanced was that, as s 39 of the Judiciary Act invested State courts with federal jurisdiction but only within the limits of their several jurisdictions, whether such limits are as to “locality, subject matter or otherwise”, and because s 34 of the Local Court Act effects a limit on the Local Court’s territorial jurisdiction, the Local Court lacked jurisdiction to determine the diversity suit between Mr Gaynor and Mr Burns.

This was not a constitutional argument nor was it, in truth, an argument that the Local Court was not a court of a State within the meaning of s 39(2) of the Judiciary Act. Rather, it was simply an argument that the Local Court lacked jurisdiction to hear any application by Mr Burns in the exercise of the Local Court’s federal diversity jurisdiction, because the Local Court’s subject matter jurisdiction was territorially limited by s 34 of its constituent Act to causes of action in which no material part of which arose in New South Wales.

Ordinarily, a challenge to a court’s jurisdiction will be most appropriately and conveniently brought in the court whose jurisdiction is being challenged even though this Court’s supervisory jurisdiction may also be engaged to that end in an appropriate case.

In rejecting Mr King’s territorial argument, the primary judge was correct, in my opinion, to observe (at [66]) that:

His Honour went on to say (at [66]-[67]):

I am in full agreement with the primary judge’s analysis.

To entertain an argument of the kind sought to be put, the Court would have needed to consider each of the elements of the cause of action created by s 49ZT(1) of the ADA, namely what the “public act” in question was, where it had occurred, and where the hatred towards, or serious contempt for, or severe ridicule of another person or group of persons was incited. In this context, “incitement” has been held to mean “to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement”: Sunol v Collier (No 2) (2012) 260 FLR 414; [2012] NSWCA 44 at [41].

The publication of material on the internet has been held to be a “public act”: Jones v Toben [2002] FCA 1150 at [73]-[75]; Collier v Sunol [2005] NSWADT 261 at [33]-[38]; see also Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14. The question of where such a publication is in fact “located” for, inter alia, jurisdictional purposes is typically not free from complexity: see, generally, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (Gutnick). Indeed, the New South Wales Administrative Decision Tribunal in Collier v Sunol at [35] referred to Gutnick in stating that:

Mr King relied upon paragraph 15 of Mr Gaynor’s affidavit of 10 September 2018 that “I do not live in New South Wales and the whole cause of action complained of in the complaints against me arose outside [of] New South Wales”. Such “evidence” which amounts to an asserted legal conclusion by a lay witness would have been a wholly inadequate basis by reference to which the primary judge could have reached any reliable conclusion in terms of s 34(1) of the Local Court Act, especially in the absence of critical information as to the specific complaints. As his Honour recorded, the evidence before him did not even disclose what the underlying complaints were. No attempt was made in this Court to remedy that lacuna.

In circumstances where, as the primary judge observed, a jurisdictional challenge may still be brought in the Local Court on the basis of, and by reference to, the causes of action before it, no injustice, let alone substantial injustice that would attract the grant of leave to appeal, was occasioned to Mr Gaynor, nor did any error of principle attend the primary judge’s discretionary decision to withhold relief in respect of the territorial argument: see, generally, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48.

The attempt to challenge his Honour’s decision by reference to the territorial argument does not, in my opinion, merit the grant of leave to appeal.

The third argument put by Mr King on behalf of Mr Gaynor was that Part 3A of the NCAT Act in some way involved subjecting Mr Gaynor to discrimination and disability within the meaning of and contrary to s 117 of the Constitution.

As noted in [30] above, this is not an argument that was advanced at first instance (although a number of other constitutional arguments were, which are no longer pressed). Nor is the argument reflected in any proposed ground of appeal, despite the grounds having been twice amended. Furthermore, the written submissions advanced in support of the argument were exiguous in the extreme. They comprised a single paragraph in submissions in reply which was as follows:

A footnote to this paragraph stated that “[s]uch discriminatory adverse treatment on the basis of residence arguably breaches Constitution s 117 and is a further possible basis for the invalidity of Part 3A [of the NCAT Act].” (emphasis added).

Putting to one side the unorthodox way in which the constitutional argument was sought to be introduced, namely in a single paragraph in reply submissions on an appeal, the argument does not, in my opinion, have any merit in circumstances where the very source of the need to proceed differently in relation to a matter between residents of different states is the Constitution itself. In short, Mr Gaynor’s complaint is as to a constitutionally mandated consequence (and one that he himself in earlier litigation insisted on being respected).

Moreover, the argument has no regard to ss 34C(3) and (4) of the NCAT Act which are expressly directed to aligning the procedure to be followed in an authorised court in cases involving federal jurisdiction with that which would apply if the matter had gone forward in NCAT.

In supplementary submissions dealing with this belated point, the Attorney General also submitted that the Court need not and should not consider Mr Gaynor’s assertion that the process under the NCAT Act “stands in stark contrast” to that under the Anti-Discrimination Act 1991 (Qld), making reference to Street v Queensland Bar Association (1989) 168 CLR 461 at 486-7, 506-8, 525, 544-5, 555; [1989] HCA 53 (Street). Those references make it clear that, as the Attorney General submitted, the relevant comparison for the purposes of s 117 of the Constitution is not a comparison between the procedures to which Mr Gaynor is subject in New South Wales with the procedures which would have been applicable had a complaint been made against him under Queensland anti-discrimination legislation.

A further objection to the s 117 argument is that that section of the Constitution does not operate by invalidating the law or governmental act by which the disability or discrimination is imposed. Rather, as was also explained in Street at 486, 502-504, 541 and Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 at 495; [1994] HCA 18, it confers an immunity upon individuals who would otherwise be subjected to impermissible disability or discrimination. It follows that s 117 of the Constitution, even if it had been infringed in the present case, would not result in a declaration of invalidity of Part 3A of the NCAT Act.

On the day following the hearing of this matter, the Court of Appeal of the Supreme Court of Victoria handed down its decision in Meringnage v Interstate Enterprises Pty Limited [2020] VSCA 30 (Meringnage).

On the application of Mr Gaynor, leave was granted to both sides to make any submissions (confined to three pages) as to the relevance of that decision for the purposes of the present case.

Meringnage considered three questions of law referred to the Supreme Court of Victoria by the Victorian Civil and Administrative Tribunal (VCAT) concerning whether VCAT was a “court of a State” within the meaning of Chapter III of the Commonwealth Constitution and the nature of the powers sought to be exercised in a proceeding before VCAT where the Commonwealth of Australia was a party.

The Court of Appeal held that VCAT was not a “court of a State” within the meaning of Chapter III of the Constitution and so was not capable of exercising judicial power in a matter in which the Commonwealth is a party. The conclusion that VCAT was not a “court of a State” was consistent with this Court’s decision in Gatsby (see [7] above). The Court of Appeal also held that the presence of the Commonwealth as a party demanded the exercise of federal judicial power, rendering the dispute a “matter” within the meaning of s 75(iii) of the Constitution. It rejected an argument that the choice by the Victorian Parliament of VCAT as the tribunal in which to enforce rights under the Equal Opportunity Act 2010 (Vic) (EO Act) meant that any such dispute was not a “matter” requiring the exercise of federal jurisdiction.

The Attorney submitted that nothing in Meringnage assists the Court in the resolution of the issues argued in these proceedings. I agree with that submission. The central question in the case, namely whether VCAT was a “court of a State”, was not alive in the present case as both parties accepted that NCAT did not have that character. Secondly, the question as to whether or not VCAT could issue orders in the nature of prohibitory and mandatory injunctions pursuant to s 125 of the EO Act was far removed from the questions raised in the present case. Thirdly, there was no argument in the present case that the disputes between Mr Gaynor and Mr Burns do not constitute a “matter” in the sense that that term is used in the Constitution and has been interpreted in any number of cases. Indeed, Mr Gaynor’s arguments in both this Court and in Burns v Corbett (High Court) necessarily assumed that they did.

On analysis, the supplementary submissions advanced by Mr Gaynor by reference to Meringnage did not advance the argument at all. Further, Mr Gaynor’s supplementary submissions were, in many respects, repetitive of or sought to expand arguments that had already been made on his behalf during the hearing. On one view, they left the reader with the impression that the delivery of judgment in Meringnage was being used as something of a pretext to repeat and elaborate on arguments that had already been made. To that extent, the supplementary submissions were outside the grant of leave.

For the above reasons, nothing in Meringnage affects my analysis or conclusions.

For the above reasons, I would refuse leave to appeal.

BASTEN JA: I agree with the orders proposed by the President and with the reasons of both the President and Leeming JA for making those orders. These further observations are not intended as a qualification of their reasons.

First, I agree that the matter is one in which the applicant required leave to appeal. However, the reasons why leave should be refused, in the somewhat unusual circumstances before the Court, require careful consideration. That can be undertaken by reference to the three major issues sought to be raised by the applicant, although by no means with the clarity with which they have been addressed in the other judgments in this Court.

The premise underlying the applicant’s argument, namely that the State lacked legislative power to confer federal jurisdiction on any State court or tribunal, may be accepted. The proposition is axiomatic: only the Commonwealth Parliament has power to legislate with respect to federal jurisdiction. [1] Nevertheless, that proposition engages the principle of statutory construction in s 31(1) of the Interpretation Act 1987 (NSW):

The obligation on this Court to construe legislation so as not to exceed the constitutional powers of the State Parliament provides a powerful reason to address the scope and operation of Pt 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Tribunal Act”) by reference to the constitutional limitation, but as a matter of statutory construction. Further, s 31 expressly envisages that a provision may validly apply to a particular person, subject-matter or circumstance, but not to other persons, subject-matters or circumstances. Thus, subs (2) indicates that the exercise in construction should be undertaken on a constrained basis, limited, so far as practicable, to the operation of the statute in issue in the circumstances of the case. If that course is taken (as it should be), questions of constitutional invalidity may be avoided.

This principle of constraint is of particular importance in relation to the Tribunal Act. The Act provides procedures with respect to a tribunal having a diverse range of subject-matter jurisdictions. Some functions of the tribunal may not give rise to “matters” for the purposes of federal jurisdiction. See, for example, the consideration of the guardianship jurisdiction of the WA State Administrative Tribunal in GS v MS. [2] That is not to say that a claim for damages for contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (rendering homosexual vilification unlawful) does not constitute such a matter. The point is, rather, that any consideration of the validity of Pt 3A must be addressed with possible limitations as to its alleged invalidity in mind: such limitations were not addressed.

The legislation introducing Pt 3A [3] followed the decision of this Court in Burns v Corbett; Gaynor v Burns, [4] which held that the NCAT did not have authority to determine three complaints made by Mr Burns against Mr Gaynor. [5] The Court did not make orders as to the constitutional validity of the legislative provisions, but, in dismissing an appeal from that judgment, the High Court found that ss 28(2)(a) and (c), 29(1) and 32 were invalid “to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor.” [6] No other court or tribunal in New South Wales then had jurisdiction to deal with those disputes arising under s 49ZT of the Anti-Discrimination Act.

There is no doubt that Parliament intended to rectify the situation thus revealed, namely that no court or tribunal in New South Wales had power to deal with disputes within the exclusive jurisdiction of NCAT if they constituted matters involving federal diversity jurisdiction. Indeed, the legislation was subsequently amended to expand the scope of Pt 3A to deal with federal jurisdiction generally. [7] It does not follow that Parliament’s intention was properly given effect by Pt 3A, but a reading which would promote that purpose or object is to be preferred to one which would not: Interpretation Act, s 33.

There appeared to be two bases upon which the applicant contended that Parliament had failed in its purpose. First, NCAT continued to perform a function, or perhaps had conferred upon it a new function, under Pt 3A, which was judicial in character. Secondly, the mechanism by which complaints were made to the President of the Anti-Discrimination Board and then referred to NCAT constituted an inseparable part of the manner in which complaints were to be resolved and, as it continued to operate to the same extent as prior to the amendments, it infected the process before NCAT, if not before an authorised court. [8]

It is convenient to start with the process by which complaints are made to the President. As enacted, the Anti-Discrimination Act provided a process for complaint-handling which differed from the current processes. An initial investigation of complaints was undertaken by the Counsellor for Equal Opportunity, who could decline to entertain frivolous complaints, but was otherwise to endeavour to resolve complaints by conciliation. These procedures were designed to provide an initial sifting process and, in effect, compulsory conciliation, before a complaint could be the subject of a hearing. They provided some reassurance for those who might have been uncomfortable with the new statutory tort [9] of discrimination that frivolous complaints would be weeded out without the need for a public inquiry.

If the complaint remained unresolved it was referred by the Counsellor to the Anti-Discrimination Board to conduct an inquiry. In 1981, the Equal Opportunity Tribunal was established, presided over by a judicial member, to conduct inquiries. [10] The role of the Board with respect to complaints was thereafter, nominally through the President, to investigate and attempt conciliation.

The suggested designation as a “statutory tort”, [11] should not obscure the fact that the filtering of complaints through the President imposes a preliminary step on the commencement of proceedings which did not, in 1901 or 1977, apply to common law torts. [12]

A similar procedure was put in place under Commonwealth legislation and, in particular, the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). Complaints were referred to the Human Rights and Equal Opportunity Commission for hearing. Because the Commission was set up as a non-judicial tribunal, provision was made for its determinations to be registered in the Federal Court. The determination then had effect as a judgment of the Court, subject to review, and could be enforced as such if not set aside.

This scheme was successfully challenged in the High Court in Brandy v Human Rights and Equal Opportunity Commission. [13] The Court held that the effect of the registration and enforcement provisions was to render the determination of the Commission an exercise of judicial power. Those provisions were therefore declared invalid. There was no doubt from the statutory language that the intention was to treat the whole of the functions of the Commission as an exercise in executive power. There was no suggestion that any stage in the process before the Commission was invalid, so long as the outcome was not to impose an order binding a defendant.

By the same reasoning, there is no reason to characterise any aspect of the process prior to the exercise by NCAT of its functions as involving judicial power.

So far as Pt 3A conferred new functions on NCAT, those functions did not involve making a final and enforceable determination of a complaint if the complaint was one within federal jurisdiction. Whether a complaint is within federal jurisdiction may well be a matter of disputation in particular cases. Because NCAT will maintain its jurisdiction with respect to all matters not in federal jurisdiction, any complaint will, inevitably, require consideration as to whether it falls within NCAT’s jurisdiction or not. There is, for reasons fully explained by the President and Leeming JA, no constitutional constraint on requiring a non-judicial tribunal to determine the scope of its own functions. Indeed, it has an obligation to do so. On the other hand, it cannot do so with conclusive legal authority. That limitation is recognised in s 34B(5), which effectively provides that the authorised court will determine whether it or NCAT has jurisdiction; the two possibilities are mutually exclusive.

For these further reasons, there is no tenable basis for maintaining that Pt 3A is invalid because it confers federal jurisdiction on NCAT.

The other constitutional argument derived from a very brief reference to s 117 of the Constitution. Section 117 grants subjects of the Queen resident in one State immunity from the imposition of a disability or discrimination by another State on the grounds of interstate residence. There is some irony in the fact that an indirect effect of s 75(iv) of the Constitution may be to deprive the interstate resident of access to a tribunal more likely to provide a quick, cheap and just, but informal process, than a traditional court. [14] In this respect s 75(iv) does not discriminate between interstate plaintiffs and interstate defendants. Nor, it would seem, can the “benefit” of access to a traditional court be waived.

Ironically, this appears not to be the result achieved in the United States, whence s 75(iv) was imported. [15] In Australia, the possibility of State jurisdiction is excluded by s 38 and s 39(1) of the Judiciary Act (or possibly by the Constitution itself), defining federal jurisdiction by reference to the jurisdiction of the High Court.

On the other hand, there is no basis for reading s 117 as creating a paramount immunity, the effect of which would be to read down the operation of s 75(iv), and perhaps render it ineffective. Rather, the two provisions of the Constitution must be read harmoniously. First, s 117 may be understood to assume that any differential treatment effected by the Constitution itself does not constitute a “disability or discrimination” to which s 117 refers. Further, it may be accepted that the kinds of disability or discrimination to which s 117 refers are those introduced by legislation or executive action on the part of a State or, possibly, the Commonwealth.

It remains true that persons resident interstate may enjoy the benefits of, and be subject to liabilities arising under, state laws: indeed, s 117 will be engaged immediately a state law purports to provide otherwise. It also remains true that, should litigation ensue, the relevant rights and obligations of the parties will be determined according to state, not federal, law. [16]

The applicant contended that there was some element of inconsistency between the operation of Pt 3A of the Tribunal Act and s 34 of the Local Court Act 2007 (NSW). That section, set out at [59] above, provides that, at least in some circumstances, the jurisdiction of the Local Court may depend upon whether the defendant was resident in New South Wales at the time of service, or indeed has never been resident in New South Wales.

There are two possible arguments about the operation of s 34 of the Local Court Act. First, to the extent that it was not varied by Pt 3A, it might have had the effect of conferring diversity jurisdiction on the Local Court. That a State Act could not do. However, that is clearly not its purpose. Its purpose is to deal with limitations based on where the cause of action arose; to deal with diversity jurisdiction, it would need also to have regard to where the plaintiff was resident, a matter which is not addressed.

Secondly, Pt 3A may vary the operation of s 34 of the Local Court Act. It may do so by conferring subject matter jurisdiction (with respect to any matter within the jurisdiction of NCAT) which is not otherwise within the jurisdiction of the Local Court. It does so only to the extent that, in the particular case, federal jurisdiction could be invoked. The conferral of subject matter jurisdiction in that regard would be sufficient to engage the operation of s 39(2) of the Judiciary Act 1903 (Cth), which would then vest federal jurisdiction in the Local Court. If the subject matter jurisdiction (subject to the qualification that it must arise in federal jurisdiction) is not established, then the Local Court must refer the matter back to NCAT. That is not an exercise of federal jurisdiction in itself, but even if it were, it would be a form of jurisdiction conferred by federal law.

The applicant’s argument could only have been founded on the fact that Pt 3A circumscribed the subject-matter jurisdiction conferred on an authorised court by conditioning it on the existence of a claim in federal jurisdiction. However, that definitional element did not constitute the attempted conferral of federal jurisdiction. A state legislature may adopt any event or thing as the factum to which it may attach legal rights and obligations or, in this case, the criterion for identifying subject-matter jurisdiction. For example, legislation may withdraw any opportunity of parole from a person sentenced to life imprisonment in respect of whom the sentencing judge made a “non-release recommendation”. As explained in Baker v The Queen, [17] in addressing a challenge to the validity of such a provision, “in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence.” Authority for that proposition was drawn from Re Macks; Ex parte Saint, [18] dealing with legislation seeking to undo the effects of Re Wakim; Ex parte McNally, [19] concluding that state legislation purporting to confer jurisdiction on the Federal Court was invalid. The states then each passed a Federal Courts (State Jurisdiction) Act 1999 giving effect to the rights and liabilities which would have been created by the Federal Court judgments, described in the legislation as “ineffective judgments”. Gleeson CJ stated in Re Macks:

Applying this reasoning, by adopting the criterion of federal jurisdiction as the criterion for identifying subject-matter jurisdiction of the Local Court, Pt 3A does not purport to confer, let alone actually confer, federal jurisdiction. It was effective to confer subject-matter jurisdiction on authorised courts, according to its terms.

The argument in this Court did not identify the possibility that s 34 of the Local Court Act might be varied by Pt 3A of the NCAT Act. That was because there was no evidence (or submissions) as to where the cause of action arose. It was at least plausible that a material part of the cause of action arose in New South Wales, if the damage alleged were suffered in this State. On the other hand, it is theoretically possible that diversity jurisdiction could arise where the defendant had never been in New South Wales and no material part of the cause of action arose within New South Wales. If NCAT nevertheless had subject-matter jurisdiction in such circumstances, the conclusion may be that s 34 of the Local Court Act is varied to that extent. It is inappropriate to resolve any such hypothetical questions in this matter.

There are other reasons for approaching these issues with caution and refusing leave to raise them in circumstances where they have not been fully addressed in submissions.

The consequences of Ch III of the Constitution with respect to dispute resolution in the various states have taken over a century to infiltrate legal thinking. The autochthonous expedient of vesting federal jurisdiction in state courts provided limited relief from the absence of a federal judiciary, other than the High Court. Although there was a variety of boards and tribunals exercising dispute resolution functions at the time the Constitution was under consideration, noted by Leeming JA in this Court, [20] and expanded upon by Edelman J on appeal in Burns v Corbett, [21] the possible implications of Ch III for state boards and tribunals were barely addressed until the last decade of the last century.

There were two early constitutional challenges to the scope of the Anti-Discrimination Act involving matters in federal jurisdiction, but neither raised the status of the (then) Equal Opportunity Tribunal. [22] In a case dealing with the Residential Tenancies Act 1987 (NSW) and the Defence Housing Authority Act 1987 (Cth), a question did arise as to the jurisdiction of the Residential Tenancies Tribunal (NSW): Re Residential Tenancies Tribunal of New South Wales v Henderson; Ex parte Defence Housing Authority (Henderson). [23] The Court held that a Commonwealth authority operating in New South Wales was subject to general non-discriminatory laws of the State. The Commonwealth legislation establishing the Housing Authority assumed the operation of such general laws and no inconsistency arose to engage s 109 of the Constitution. It followed that the Court did not need to determine a further argument as to whether state laws applied by operation of s 64 of the Judiciary Act. However, the joint reasons of Dawson, Toohey and Gaudron JJ stated: [24]

Gummow J stated: [25]

McHugh J also accepted that the Tribunal was not a court and therefore that s 64 of the Judiciary Act had no operation. Rather, he described the Tribunal as a “quasi-legislative body.” [26]

It may be significant that, a decade after it commenced operating, the functions of the Equal Opportunity Tribunal were not equated with those of a conventional court. In Re NSW Corporal Punishment in Schools Case, [27] involving complaints by a number of young persons, Mathews DCJ presiding in the Tribunal, considered whether the complainants should be allowed to bring complaints otherwise than through tutors. She concluded that, as they were not exercising rights in a court of law, they did not require tutors. The complaints themselves did not commence legal proceedings, being lodged with the President of the Board. The “inquiry” in the Tribunal was commenced by the President referring the complaints to the Tribunal. Judge Mathews noted that, given the potential consequences in damages, “the practice has developed of treating inquiries before the Tribunal as essentially adversarial by nature.” [28] The judge continued:

A year later, in Haines v Leves, [29] another case involving discrimination in school education, Street CJ referred to the reasoning of Mathews DCJ in Re NSW Corporal Punishment, noting that she had drawn attention “to the statutory responsibility of the Tribunal to hold an inquiry into complaints rather than to adjudicate in an adversarial sense as between a complainant and a respondent” and expressed his entire agreement with those observations. [30] Kirby P dealt with the issue at greater length, also expressly agreeing with the reasoning of Mathews DCJ in Re NSW Corporal Punishment. [31]

There was no attempt in the present case to consider whether this characterisation of the role of the Equal Opportunity Tribunal was still good law, and applied with respect to the determination of complaints under the Anti-Discrimination Act in the Administrative and Equal Opportunity Division of NCAT.

As noted above, questions of federal jurisdiction may arise in many different circumstances. Thus, a claim may invoke federal jurisdiction where it depends for its existence on a Commonwealth law; that is, it involves a matter arising under a law made by the Parliament, within s 76(ii) of the Constitution. [32] A claim under s 52 of the Trade Practices Act 1974 (Cth) engaged that head of federal jurisdiction. In Trust Company of Australia Ltd v Skiwing Pty Ltd (Skiwing), [33] this Court held that the Retail Leases Division of the Administrative Decisions Tribunal was not a “court of a state” for the purposes of s 77(iii) of the Constitution and s 86(2) of the Trade Practices Act. However, the erroneous conclusion of the Appeal Panel that it had jurisdiction to consider such a claim did not infect the finding made in relation to a second matter before it in the same proceedings, involving a breach of the Retail Leases Act. Unlike Henderson, the question in Skiwing as to the engagement of federal jurisdiction did not turn on the identity of the party (where the Commonwealth or a Commonwealth agency is a party, federal jurisdiction will necessarily be involved) but on the source of the relief sought. [34]

However, where the claim arises under state law, it will not necessarily be picked up and applied as federal law in a case otherwise in federal jurisdiction. That circumstance was critical in Rizeq v State of Western Australia, [35] a case in which the accused was a resident of New South Wales and was prosecuted by the State of Western Australia for two offences under the Misuse of Drugs Act 1981 (WA). Federal jurisdiction arose pursuant to s 75(iv) of the Constitution, being one form of diversity jurisdiction. Mr Rizeq contended that because the court was exercising federal jurisdiction, the State law governing the offence operated as a surrogate federal law, being picked up by s 79 of the Judiciary Act. If that were the case, he could not properly be convicted by a majority verdict, such a verdict not being available with respect to offences against a law of the Commonwealth to which s 80 of the Constitution applies. [36] The Court rejected this argument on the basis that only federal law could govern the management and exercise of federal jurisdiction, but the substantive law to be applied remained the law of the State.

The range of issues which can thus arise in identifying what constitutes a “matter” for the purposes of ss 75 and 76 of the Constitution, are well understood. [37] In Attorney General for New South Wales v Gatsby [38] I was concerned that the Court was being invited to determine whether NCAT was exercising judicial power without the nature of the matter being addressed. [39] In the absence of submissions or an adequate notice under s 78B of the Judiciary Act, it was not possible to determine the case on that basis. Similar issues have now been fully argued and resolved (rejecting the reasoning I had set out in Gatsby) by the Victorian Court of Appeal in Meringnage v Interstate Enterprises Pty Ltd t/a Tecside Group. [40] If the issue arose in a properly presented case in this Court, the reasoning of the Victorian Court of Appeal might well be found to be persuasive, and would then be followed.

The relevance of Gatsby for present purposes is the undesirability of determining constitutional issues of great public importance which are inadequately presented for consideration, perhaps because the submissions rely upon an unarticulated premise. Although in this judgment the Court has been at some pains to identify and address the issues apparently raised in submissions, it remains possible that we have failed to identify and resolve some important issue. For these reasons, despite the apparent and detailed consideration of the arguments, no substantial and meritorious argument having been identified, the appropriate course is to refuse leave to appeal.

LEEMING JA: I agree with Bell P. I also agree with Basten JA. I add the following, by way of emphasis rather than qualification, on the principal proposed grounds of appeal. What follows assumes familiarity with the President’s judgment.

Mr Gaynor’s first point was that s 34B of the Civil and Administrative Tribunal Act 2013 (NSW) was invalid for substantially the same reasons as had been identified by the High Court in Burns v Corbett [2018] HCA 15; 353 ALR 386, namely, it permitted diversity jurisdiction to be exercised by NCAT. Mr Gaynor emphasised that s 34B(2) expressly contemplated proceedings being commenced in NCAT, and other provisions including s 34B(4) contemplated their continuation. He submitted that the right to commence in an “authorised court” was doubly discretionary, in that (a) the person was not required to commence in the authorised court, and (b) proceedings in an authorised court were subject to a grant of leave. All of this was said to confirm that s 34B left NCAT exercising federal jurisdiction, contrary to constitutional implication identified by the High Court.

Mr Gaynor also pointed to the provisions concerning investigations by the Anti-Discrimination Board, attempts to resolve the dispute through conciliation, and other administrative steps which NCAT might perform in addition to forming a view as to federal jurisdiction. On the facts of this litigation, there had been some renumbering and consolidation of some of the matters referred to NCAT by the President of the Anti-Discrimination Board.

Mr Gaynor said that it was central to his case on this issue that “if one of the above stages is invalid or void for want of jurisdiction then the subsequent stages also fail” and that “if the [President of the Board] has no power to refer diversity complaints to [NCAT] then the Tribunal has no power to consider or maintain any such complaint including by considering it and declining jurisdiction under Part 3A”.

Some of those matters were said, in Mr Gaynor’s written submissions, to render Part 3A invalid for a different reason: “because it impairs the negative implications essential to the separation of powers under Chapter III”. Reliance was placed on decisions dealing with federal tribunals. That strand of the argument may readily be dismissed; “there is not, in the States’ constitutional arrangements, that same separation of powers that is required at a federal level by Ch III of the Constitution”: Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531; [2010] HCA 1 at [69]. Insofar as there is any force in these submissions, it cannot be based upon separation of powers. Rather it must be based on the implication identified in Burns v Corbett in the High Court precluding a State from enacting a law authorising a tribunal to determine a matter in federal jurisdiction, and its impact upon the provisions in Part 3A which involve applications being made to NCAT in matters in federal jurisdiction, prior to an “authorised court” becoming seized of the matter.

Far from there being anything antithetical to any constitutional implication, s 34B is consistent with the ordinary principles governing the invocation and exercise of jurisdiction, insofar as it contemplates an application being made to NCAT. The main reason I cannot accept this aspect of Mr Gaynor’s submissions is that it overlooks a fundamental element of the exercise of jurisdiction, namely, the authority to decide whether a claim which has been made to a court or tribunal is within its authority.

A litigant may purport to invoke the jurisdiction of a court, although in fact the court lacks jurisdiction to hear and determine the claim. It is settled law that the court’s “first duty” is to determine whether or not it has jurisdiction. The words “first duty” are commonly traced to Griffith CJ’s judgment in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31: “the first duty of every judicial officer is to satisfy himself that he has jurisdiction”. The same language was used in the joint judgment in Re Nash (No 2) (2017) 263 CLR 443; [2017] HCA 52 at [16], while in New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31] the joint judgment emphasised that “all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction.” In fact, consideration of whether the jurisdictional limitations of a court have been satisfied preceded the creation of the High Court of Australia by centuries. This is one of the earliest examples of legal reasoning. It is a reflection of, in Holdsworth’s words, “[o]ne of the most inconvenient of all the anomalies which disfigured the English judicial system”, being “the ill-defined and clashing jurisdictions of the various courts which administered the law”: W Holdsworth, A History of English Law (Methuen & Co Ltd, 7th ed, 1956), Vol 1 p 634. Thus, Gaudron and Gummow JJ referred in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [28] to the well-developed practice of King’s Bench issuing prohibition to the Court of Admiralty and the ecclesiastical courts. Berman wrote of the still earlier contest between royal and ecclesiastical jurisdictions in the time of Henry II and King’s claim that royal authority alone had the right to determine what jurisdiction was competent in doubtful cases, noting that “[t]he question concerned the competence of a court to determine its own competence”: H Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983), pp 265-266. Courts of limited jurisdiction have for many centuries been required to attend to those limits, and careful attention has long been given to the nature of the authority they exercise in such cases.

The need for NCAT to consider the limitations on its authority to decide claims made to it is similar. NCAT is a tribunal, in respect of which federal jurisdiction cannot be invested pursuant to s 77(iii) of the Constitution, notwithstanding that it may exercise judicial power: Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254. As the joint judgment observed in Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 at [51]:

It follows that NCAT necessarily has a duty to satisfy itself whether a claim made to it is within its limited authority.

When s 34B is considered against those precepts, the constitutional objections based on the High Court’s reasons in Burns v Corbett fall away.

An application or an appeal involving two persons who appear to be residents of different States may be commenced in NCAT (whether by original application, by referral or by appeal). NCAT has a duty to consider whether the dispute is within federal jurisdiction and therefore cannot be determined by itself, being a body which is not a court for the purposes of s 77(iii). The fact that s 34B contemplates applications being made to NCAT which NCAT cannot determine on the merits is not antithetical to any constitutional limitation on State legislative power. Rather, it recognises a longstanding attribute of all courts and tribunals of limited jurisdiction.

Some cases (such as the present) commenced in NCAT may be clear-cut. Others may be contestable (there may for example be a dispute whether the respondent is or is not a resident of the other State). Indeed, s 34B expressly contemplates that the authorised court may come to different views on the point. Although it might appear at first that NCAT lacked jurisdiction because the application or appeal involved an exercise of federal jurisdiction, and thus the authorised court might grant leave (s 34B(2)), the authorised court might later be satisfied, perhaps after receiving further evidence or submissions, that NCAT did have jurisdiction to determine the application or appeal (for example, the evidence of residence may be contested, or the respondent might have moved to New South Wales shortly before the application or appeal was commenced). In such a case, power is conferred by s 34B(5) to remit it to NCAT.

Thus, the role of NCAT contemplated by those provisions does not infringe the implied limitation upon State legislative power. It is consistent with the obligations which lie upon all bodies, both courts and non-courts, which exercise public power, to satisfy themselves that claims are within the limited authority of each body.

Three further points may be noted. First, NCAT will inevitably form a view as to whether the parties are residents of different States, and doing so may lead it to make an order. However, any such order will not be an exercise of the judicial power of the Commonwealth, even though it will be informed by its view of the limits of its own authority, in accordance with what was said in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 at [20]. There is a difference between an authoritative, binding determination of a dispute between the parties by the exercise of judicial power, and the expression of an opinion. In disputes between residents of different States such as the present, NCAT can only do the latter. But nothing in Chapter III can prevent a tribunal from forming an opinion as to the limits of its own authority. As Brennan J observed in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 242, “The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.”

Secondly, there can be no contravention of the constitutional implication if the President of the Board exercises some non-judicial function (such as investigating or attempting conciliation), or if NCAT exercises an administrative function (such as consolidating a number of referrals). What matters for the purposes of Chapter III of the Constitution is the exercise of federal judicial power. The further aspects of the legislative scheme involving non-judicial power on which Mr Gaynor relied do not assist him.

Thirdly, reliance was placed on the third sentence of [97] in my judgment in Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 in support of the proposition that “there is no statutory power for the President of the Board to refer to NCAT the vilification complaints in issue all being diversity matters proscribed [sic] by Constitution s 75(iv).” The passage has been taken out of context. It is best to reproduce the entire paragraph:

The reference to "no operative power" is plainly a reference to the effect of s 109, rendering certain State laws inoperative. I was saying that the effect of s 109 upon the qualified investment of jurisdiction in matters between residents of different States effected by s 39(2) was to render inoperative other State laws which would “alter, impair or detract” from the federal law. It is now established that that is not the test. What I wrote about the effect of s 109 prior to the High Court’s decision cannot be relied on as authority for the consequences of a constitutional implication based on the absence of legislative power, as opposed to the effect of s 109.

At the commencement of his address, Mr King identified the second strand of his argument thus:

Although an attempt was made to develop s 117, little was said based on s 109. Doing the best I can, either or both of two propositions may have been put. It was perhaps submitted that the requirement to commence in NCAT and then to obtain leave from the authorised court was inconsistent with the investment of jurisdiction in the authorised court by s 39(2) of the Judiciary Act 1903 (Cth). Separately, Mr King submitted in writing that “part 3A purportedly invests a part of the judicial power of the Commonwealth on State agencies in a manner not provided for by s 39(2)”, and confirmed that that was his submission during the hearing:

Section 34B cannot amount to an investment of federal jurisdiction, whether on NCAT or the Local Court. It is axiomatic that only federal laws can invest federal jurisdiction on State courts. Mr King’s submission amounted to characterising the impugned provision as doing something which it was plainly unconstitutional, and concluding that therefore it was invalid. But the starting point is construction, and s 34B is to be construed on the basis that it is valid, in accordance with Interpretation Act 1987 (NSW), s 31. When s 34B was enacted (in 2017) and amended (in 2018), the Legislature had firmly in mind the decisions of this Court and the High Court. After all, the section refers in terms to federal jurisdiction and the limitations of jurisdiction of NCAT. Rather than invalidly purporting to confer federal jurisdiction, s 34B presupposes that the “authorised court” already has jurisdiction invested in it by s 39(2) of the Judiciary Act. It is well described as an authorised court because the court has the necessarily federal authority to decide the controversy which is in federal jurisdiction.

Further, s 39(2), which invests jurisdiction, albeit “within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise” upon the State courts, cannot be inconsistent with a State law which speaks to the incidents of the right. Section 34B makes provision as to the anterior steps which are to be taken before the application or appeal is determined. It is to be borne in mind that the right which may be vindicated in the application or appeal to NCAT or an authorised court is itself a creature of statute. Altering the steps to be taken at the outset does not impair or detract from the federal jurisdiction invested in the authorised court to determine that application or appeal.

On one view, s 34B(4) might potentially be more problematic, insofar as it is a State law which stays the processes of a State court exercising federal jurisdiction until an appeal within NCAT is determined. But there is no suggestion of this provision arising in the present case. Starke J once said that a litigant “cannot roam at large over the regulations and attack them generally” but “must be confined to those which affect his rights ... and are unseverably tied up with them”: The Real Estate Institute of NSW v Blair (1946) 73 CLR 213 at 227; [1946] HCA 43, and his admonition was endorsed in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [33]. It is inappropriate for this Court to be drawn into consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise. Lest there be doubt about it, this paragraph should not be read as somehow implying that s 34B(4) is attended by constitutional doubt. Rather it is the application of a settled approach to determining constitutional issues.

I do not wish to add to what the President has said as to the other grounds of appeal. For these reasons, as well as those given by the President, no case for the grant of leave has been made out.