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NSW Government Bulletin

13 November 2018

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Published by:

Lauren Stables

NSW Government Bulletin

Attorney General for New South Wales v Gatsby

In Attorney General for New South Wales v Gatsby (2018) NSECS 254, the NSW Court of Appeal (the Court) held that the Civil and Administrative Tribunal of NSW (NCAT) is not a court of a State and therefore does not have jurisdiction to determine matters between residents of different States by reason of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution

Proceedings before the appeal 

Two proceedings under the Residential Tenancies Act 2010 (NSW) (RT Act) were commenced in NCAT between residents of different States: Gatsby v Gatsby (RT 15/56639) and Dibbin v Johnson (RT 15/41349); Johnson v Dibbin (RT 15/44353) (Two Proceedings). The unsuccessful party in each proceeding appealed to the Appeal Panel of NCAT, however issues were raised concerning NCAT’s jurisdiction to determine proceedings between residents of different States. 

The hearings of the appeals were stood over pending the decision of Burns v Corbett (2017) NSWCA 3 (Burns v Corbett), which also concerned the jurisdiction of NCAT. In Burns v Corbett, the Court held that NCAT could only determine matters between residents of different States if it were a court of a State within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. As a matter of assumption, the Court held that NCAT is not a court of a State. This decision was later affirmed by the High Court of Australia in Burns v Corbett (2018) HCA 15.

Following the Court of Appeal decision in Burns v Corbett, the Appeal Panel in the Two Proceedings determined that NCAT had been exercising judicial power in making the orders sought under the RT Act. It was also held that NCAT was a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. Dilemma.

Issues on appeal

The Attorney General of NSW who was joined as a party to the Two Proceedings sought leave to appeal from the Appeal Panel’s decision. The issues on appeal were:

  • whether the Court has jurisdiction under s 83(1) of the NCAT Act to determine the appeal
  • whether NCAT was exercising judicial power in making an order under s 87 of the RT Act terminating a residential tenancy agreement
  • whether NCAT is a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution.

Decision

The Court held that it did have jurisdiction to determine the appeal under s 83(1) of the NCAT Act.

It also held that NCAT was exercising judicial power in making orders under s 87 of the RT Act. In determining whether to terminate a residential tenancy agreement, NCAT must identify whether a contract exists, whether the contract was breached and whether the breach justifies termination. NCAT’s discretion was therefore found to be analogous to that exercised by courts under the general law. 

The Court acknowledged that NCAT shares many features of a court, however held that it is not a court of a State within the meaning of s 39(2) of the Judiciary Act and s 77(iii) of the Constitution. NCAT is not designated as a court of record and is not composed predominantly of judges. The members of NCAT do not have the necessary degree of independence, impartiality, protection and security of tenure which is required for a body to constitute a court of a State. Furthermore, the Court held that the introduction of Part 3A of the NCAT Act was a clear legislative statement that NCAT was not a court of a State.

Editorial: Christine Jones & Lauren Stables

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Cases

AB v Judicial Commission of New South Wales (Conduct Division) [2018] NSWCA 264
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Kokou v Roads and Maritime Services and Local Court of New South Wales [2018] NSWSC 1692
ADMINISTRATIVE LAW – Judicial Review – Where Roads and Maritime Services (RMS) cancelled plaintiff mechanic’s examiner’s authority to test and check vehicles for registration purposes – Where appeal against RMS decision dismissed by the Local Court – Whether Magistrate denied procedural fairness by making findings adverse to the plaintiff contrary to concessions by the RMS without adequate notice – Whether Magistrate denied procedural fairness by making adverse findings beyond the breaches alleged against the plaintiff in the show cause letter  JURISDICTION – Appeals – Whether privative clause under s 270 of the Road Transport Act 2013 (NSW) has the effect of removing right of appeal from the Local Court to the Supreme Court against Local Court determinations under s 267(1) of the Road Transport Act – Whether s 267(1) matters are properly heard in the General Division of the civil jurisdiction of the Local Court or within the Court’s special jurisdiction.

Attorney General for New South Wales v Gatsby [2018] NSWCA 254
CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order  CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).

Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069
PUBLIC SECTOR – disciplinary appeal – appeal to Supreme Court – appeal allowed remitted to Industrial Relations Commission – orders under s 100D (1)(b)-(c) – whether orders should be made – calculation of what the employee would have received - whether the appellant has a duty to mitigate loss - overarching discretion.

Altmann v Commissioner for Fair Trading [2018] NSWCATOD 178
ADMINISTRATIVE REVIEW – motor mechanic – whether fit and proper person to hold a tradesperson’s certificate - criminal convictions – former member of outlaw motorcycle gang – period of time since convictions – rehabilitation – nature and purpose of role of motor mechanic.

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254
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Legislation

High Court of Australia (Fees) Amendment Regulations 2018
29/10/2018 - These regulations make consequential amendments to the High Court of Australia (Fees) Regulation 2012 following the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018.

Proclamations commencing Acts
Criminal Procedure Amendment (Pre-trial Disclosure) Act 2018 No 47 (2018-610) — published LW 2 November 2018 - commencing on Friday, 2 November 2018, the Act gives effect to recommendations of the statutory review of the Criminal Procedure Act 1986 with respect to the mandatory pre-trial disclosure by the prosecutor and the accused person of certain evidence and other matters in proceedings for indictable offences.

Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment No 6) Order 2018 (2018-623) — published LW 9 November 2018
Administrative Arrangements (Administrative Changes—Western City and Aerotropolis Authority) Order 2018 (2018-624) — published LW 9 November 2018
Administrative Arrangements (Administration of Acts—Amendment No 5) Order 2018 (2018-617) — published LW 2 November 2018
Health Records and Information Privacy Amendment (My Health Record) Regulation 2018 (2018-611) — published LW 2 November 2018

Bills assented to
Government Telecommunications Act 2018 No 67 — Assented to 31 October 2018
Statute Law (Miscellaneous Provisions) Act (No 2) 2018 No 68 — Assented to 31 October 2018

For the full text of Bills, and details on the passage of Bills, see Bills

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Published by:

Lauren Stables

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