High Court Rejects Jurisdictional Appeal From NSW Supreme Court: Burns v Corbett [2018] HCA 15

“Sections 28(2)(a) and (c), 29(1) and 32 of the NCAT Act are 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. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon NCAT where the complainant and the respondent to the complaint are "residents of different States" within the meaning of s 75(iv) of the Constitution.”

“In the Court of Appeal it was accepted by all parties that even though, in hearing and determining Mr Burns' complaints, NCAT was exercising the judicial power of the State because it was able to render a binding, authoritative and curially enforceable judgment independently of the consent of the persons against whom his complaints had been brought, NCAT was not a "court of the State".”

"In all matters:

1. arising under any treaty;
2. affecting consuls or other representatives of other countries;
3. in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
4. between States, or between residents of different States, or between a State and a resident of another State;
5. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.”

“While Ch III does not mandate the establishment of a single federal judicial system, it does establish the federal "Judicature", which may exercise adjudicative authority with respect to the matters listed in ss 75 and 76 of the Constitution. The federal Judicature is not a uniform national court system, but it has aptly been described as an "integrated national court system", at the head of which this Court exercises constitutionally guaranteed appellate jurisdiction. In Re Wakim; Ex parte McNally, Gummow and Hayne JJ said:

"[W]hen it is said that there is an 'integrated' or 'unified' judicial system in Australia, what is meant is that all avenues of appeal lead ultimately to this Court and there is a single common law throughout the country. This Court, as the final appellate court for the country, is the means by which that unity in the common law is ensured."

It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III16, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts, albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution.

A State court invested with adjudicative authority in respect of matters listed in ss 75 and 76 of the Constitution pursuant to s 77 is so invested as a "component part" of the federal Judicature for which Ch III provides.”

“The effect of these provisions of the Judiciary Act is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, including matters between residents of different States, is an exercise of federal jurisdiction.”

“The High Court has in the past made plain that, except with respect to the subject matters identified in ss 75 and 76 of the Constitution, a State Parliament can confer State judicial power on a State tribunal that is not a court of that State. The ultimate question now for determination is whether the exception is warranted.

My opinion is that the exception is warranted as a structural implication from Ch III of the Constitution. The implication is needed because State legislative power to confer State judicial power on a State tribunal that is not a court of a State must be denied in order to ensure the effective exercise of the legislative powers conferred on the Commonwealth Parliament by s 77(ii) and (iii) to produce by legislation the constitutionally permissible result that an exercise of judicial power with respect to a subject matter identified in s 75 or s 76 occur only under the authority of Commonwealth law, in a forum which meets the minimum characteristics of a Ch III court, so as to give rise to a judgment or order that is appealable directly to the High Court subject only to such exceptions or regulations as the Commonwealth Parliament may prescribe under s 73(ii).”