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:
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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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
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