procedural. Order: (1) Hearing dispensed with under s 50(2) of the NCAT Act; (2) Leave to extend time for filing the Notice of Appeal is refused.
Key principles
The Appeal Panel dispensed with an oral hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) where the issues could properly be determined on the papers:...
Leave to extend time to file the Notice of Appeal was refused because the appellant did not show that strict compliance with the filing rules would work an injustice, the delay...
The Tribunal lacks power to exercise federal diversity jurisdiction (disputes between residents of different States), and its valid options when faced with such an application...
An order made by NCAT that purports to resolve a federal diversity 'justiciable controversy' is ineffective insofar as it attempts to exercise judicial power in that federal...
Issues before the court
Should the Appeal Panel extend time to file a Notice of Appeal filed well beyond the 28-day rule?
Did NCAT have power to decline to determine multiple proceedings on grounds that they involved federal diversity jurisdiction, and was the Decision...
Plain English Summary
This Appeal Panel declined to hold an oral hearing and refused the appellant's application for an extension of time to lodge a Notice of Appeal against NCAT's 23 February 2018 Decision which declined to determine several matters on the ground they involved federal diversity jurisdiction. The Panel applied established principles for extension of time (Jackson) and found the delay excessive, the explanation inadequate, and the proposed appeal lacking sufficient merit or showing of practical injustice. The Panel also reiterated that NCAT cannot adjudicate federal diversity disputes between residents of different States; its appropriate responses are administrative (decline to determine, facilitate leave applications under Part 3A), not judicial determinations on the merits.
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Deep Dive
1,731 words · generated 14/09/2026
What happened
Was there a denial of procedural fairness because the Decision was made without notice or without a hearing?
Could the Tribunal have validly dismissed proceedings under s 102 of the Anti-Discrimination Act or s 55(1)(b) of the NCAT Act?
Cited legislation
5 cited instruments linked from this judgment.
This Appeal Panel considered a late appeal by Bernard Gaynor (the appellant) against a decision of the Administrative and Equal Opportunity Division of NCAT dated 23 February 2018 (the Decision). The Decision had two operative limbs: (1) NCAT “declines to determine” a set of proceedings because their determination would involve the exercise of federal diversity jurisdiction; and (2) NCAT dismissed three other applications as having been withdrawn. The underlying factual matrix was a long-running set of complaints by Garry Burns (the respondent) under the Anti-Discrimination Act 1977 (NSW), many of which had been referred to NCAT by the President of the Anti-Discrimination Board (Background [5]-[11]).
The Court of Appeal and the High Court had earlier determined that NCAT is not a “court of a State” able to exercise judicial power in federal diversity matters (see Burns v Gaynor [2017] NSWCA 3, and the High Court proceedings summarised at Background [12]-[16], and the judgment’s repeated reference to Gatsby [2018] NSWCA 54). Part 3A of the NCAT Act was later introduced to provide a procedural route for parties to seek leave to continue matters in authorised State courts (Background [14]-[16]).
Gaynor received the Decision on 23 February 2018 but did not lodge his Notice of Appeal until 28 April 2020, approximately two years late (Appeal commenced out of time [1]). He sought leave to extend time. The Panel considered whether to dispense with oral hearing (it did: s 50(2)) and whether to grant the extension of time. Relying on the Jackson factors (quoted at length: 'Appeal commenced out of time', referencing Jackson at [22]), the Panel concluded the delay was exceptionally long, Gaynor’s explanation was unconvincing, the proposed appeal lacked sufficient merit, and no practical injustice was shown. Leave to extend time was refused and the appeal was not heard (Orders).
Why the court decided this way
Three strands of reasoning drive the Panel’s decision.
Procedural competence and sufficiency of the material on the papers. The Panel concluded that the legal and factual issues for determination on the extension application could be adequately resolved on the papers and that a hearing was unnecessary (Should an oral hearing be conducted? [3]). The parties were given opportunities to file written submissions and did so.
Discretion to extend time governed by well‑established factors. The Panel applied the Jackson framework: it required the appellant to show that strict compliance with procedural timetables would cause injustice, and to demonstrate at least a fairly arguable appeal. The Panel found the delay was long (~2 years), the explanation insufficient (complex procedural history was not persuasive), and the proposed grounds lacked merit (see the Panel’s run through of the appellant’s grounds and why they failed). Where the appellant’s case did not show a clear injustice or substantial prospects, extension was to be refused.
The constitutional and doctrinal backdrop. Much of the substantive argument turned on whether NCAT had power to make the Decision or whether prior orders (such as the 27 April 2015 stay) meant NCAT had acted beyond power as to one of the proceedings. The Panel reviewed the legal position that NCAT is not a court of a State able to exercise federal judicial power in diversity matters (citing Burns, Gatsby, Wilson), and concluded that the Decision was a permissible administrative-type response to jurisdictional limitation (declining to determine and noting the availability of Part 3A leave mechanisms) rather than a binding adjudication on the merits. Even if the Decision arguably affected a stayed matter, the Panel considered that such a point did not make the appeal sufficiently meritorious to justify extension of time.
The Panel therefore exercised its discretion against extension.
Before and after state of the law
Before these contested decisions, there was uncertainty about whether State administrative tribunals such as NCAT could exercise jurisdiction in disputes between residents of different States. The Court of Appeal and High Court litigation in the parties’ wider battles clarified that a State tribunal not constituting a “court of a State” cannot exercise federal judicial power in diversity matters. The judgment records that this clarification led to legislative amendment (Part 3A of NCAT Act) to provide a pathway for matters that cannot proceed in NCAT because of federal jurisdictional constraints (Background [12]-[16]).
After those decisions and the legislative response, the legal position is clarified in the judgment: NCAT must not attempt to adjudicate the merits of diversity matters; its permissible steps are administrative, declining to determine, dismissing as an administrative act for want of jurisdiction, assisting by providing documents, and otherwise facilitating leave applications to State courts under Part 3A (Dalton summary; 'Ground 2, limb 2'). The judgment reiterates that any NCAT order that purported to be a final judicial adjudication on such federal matters would be ineffective.
Thus, the case sits in the post‑Gatsby and post-Burns landscape where tribunal jurisdiction is constitutionally curtailed and Part 3A provides the procedural response.
Key passages with plain-English translation
“It is now clear that, because the parties were residents of different states at all relevant times, the Tribunal has no power to determine the justiciable controversy between them.” (Summary [3]).
Plain English: Because the parties lived in different States, NCAT could not finally decide the dispute between them.
“A hearing in relation to the appeal is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).” (Orders).
Plain English: The Panel decided the appeal could be decided on written material; no oral hearing was needed.
Jackson factors (quoted at [22]): length/reason for delay; prospects of success; prejudice; whether strict compliance would cause injustice.
Plain English: When someone asks for extra time to appeal, the Tribunal weighs how late the appeal is, why, whether the appeal has a real chance, and whether it would be unfair to deny the extension.
“A decision under s 102 of the Anti-Discrimination Act could not have been made, as it requires adjudication on the complaint in the exercise of judicial power to determine the justiciable controversy.” (Ground 2, limb 2).
Plain English: NCAT could not invoke the clause allowing dismissal on merits if dismissing would require it to judge the merits of a federal matter it had no power to decide.
The Panel’s assessment that any procedural unfairness (lack of notice) caused “no practical injustice” (The first additional argument).
Plain English: Even if NCAT should have given notice, the appellant did not show that this failure changed his chances or led to a worse outcome.
What fact patterns trigger this precedent
A late application for leave to appeal an NCAT decision where the appellant has delayed for a substantial period (years rather than weeks) and cannot demonstrate substantial prospects of success or practical injustice from strict compliance with appeal timetables.
Cases where NCAT or a similar State tribunal has declined to determine matters on the ground that they involve federal jurisdiction (residents of different States), and those declined matters are the subject of later procedural challenges.
Disputes combining constitutional jurisdiction issues (whether tribunal is a 'court of a State' under Chapter III) with procedural remedies (extension of time, claims of procedural unfairness).
Appeals that largely revisit earlier constitutional determinations already clarified by appellate courts and the High Court, where the appellant seeks to re-litigate the tribunal’s power but fails to show any fresh legal error or prejudice.
How later courts have treated it
This decision operates at the Appeal Panel level in NCAT as an application of established principles: it applies Jackson for extensions of time and reiterates the post‑Burns/Gatsby position that NCAT may not make judicial determinations in federal diversity matters. The judgment cites later NCAT commentary (Dalton [2020]) and the NSW Court of Appeal (Wilson [2020]) to situate the administrative options available to NCAT. Its treatment is consistent with the trend: courts and tribunals now accept that NCAT's options are constrained, and that Part 3A provides the mechanism for continuation of claims in court where necessary.
Because the Panel refused leave to extend time, the decision itself is procedural. Subsequent courts may cite it as an example of rigorous application of Jackson factors and of the practical limits of relief where delay is substantial and merits slender.
Still-open questions
The judgment leaves unresolved whether a stay made by an Appeal Panel exercising federal jurisdiction was itself valid; the Panel noted the possibility of arguing the stay was ineffective but did not determine it because parties did not argue the point (Ground 1). That question could be material if a party later seeks relief directly attacking the validity of stays or other interlocutory orders made during periods of contested tribunal jurisdiction.
The judgment notes uncertainty about the precise form of administrative orders NCAT should make when it forms the opinion that a matter involves federal jurisdiction: s 34B does not expressly require NCAT to give an indication before a party seeks leave in an authorised court (Ground 2, limb 1). The practical inter‑relationship between NCAT administrative steps and court leave applications under Part 3A remains an area where procedural practice may evolve.
The decision accepted that NCAT may make 'administrative' decisions declining to determine matters but did not draw a bright line between permissible administrative action and prohibited judicial adjudication in all possible interlocutory contexts. Future cases may test the boundary in complex, multi-issue matters where interlocutory rulings touch on substantive components.
The appropriate remedy for a tribunal error on the face of the record remains a live question. The Panel observed contemporary commentary that prerogative relief is discretionary even where error appears on the face of the record (citing Katter and Yirrell commentary). How higher courts exercise that discretion in the tribunal context may require further clarification.
This deep dive summarises the Appeal Panel’s reasoning in Gaynor v Burns [2020] NSWCATAP 203, grounded in the Panel’s Reasons for Decision. It explains the Panel’s procedural disposition (refusal of extension of time and dispensing with oral hearing), the constitutional and statutory background limiting NCAT’s powers in federal diversity matters, and the practical takeaways on interlocutory remedies and tribunal procedure.
This is general legal information only, not legal advice. I can make mistakes. Before you act on or rely on this analysis, or on any draft derived from it, get a qualified Australian lawyer to check it.
Catchwords
[2002] HCA 11
Re Minister for Immigration and Multicultural AffairsEx parte Lam (2003) 214 CLR 1[2003] HCA 6
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Yirrell v Yirrell [1939] 62 CLR 287
Judgment (12 paragraphs)
[1]
Summary
The dispute between these parties has traversed the gamut of relevant tribunals and courts in this State, and the High Court.
Together with other proceedings on related issues (see, for example, Attorney General for New South Wales v Gatsby [2018] NSWCA 54 ("Gatsby"), it has led to clarification of the fact that this Tribunal is not a Court of a State, for the purpose of s 77(iii) of the Constitution, and contributed to the subsequent introduction of Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
It is now clear that, because the parties were residents of different states at all relevant times, the Tribunal has no power to determine the justiciable controversy between them.
In the five years that this process has been ongoing, there has still been no hearing on the merits on the majority of the essential complaints of the respondent to this appeal - that he has been vilified by the appellant in contravention of the Anti-Discrimination Act 1977 (NSW). The decision in the one matter which has been determined is a nullity.
Three of the complaints are now before the Local Court for determination, however the appellant has conducted what appears to be a somewhat belated review of the procedural history of these proceedings, and identified a potential irregularity in an order made by the Administrative and Equal Opportunity Division of this Tribunal on 23 February 2018 ("the Decision"). He has appealed the Decision, by a Notice of Appeal lodged in April this year, over two years out of time.
The Decision referred to each of the following Tribunal proceedings: 2015/00383064, 2016/00378235, 2016/00378236, 2016/00378237, 2016/00378238, 2016/00378239, 2016/00378240, 2016/00378241, 2016/00378355, 2016/00378356, 2016/00378357 and 2016/00378471.
The Decision was in the form of two orders, as follows:
1. The Tribunal declines to determine Applications 2015/00383064, 2016/00378235, 2016/00378236, 2016/00378237, 2016/00378238, 2016/00378239, 2016/00378355, 2016/00378356, 2016/00378357 and 2016/00378471, because the determination of each Applications (sic) involves the exercise of federal diversity jurisdiction. The Tribunal notes that the applicant states that he intends to apply to an authorised Court under s 34B of the Civil and Administrative Tribunal Act 2013 (NSW) to determine these applications.
2. The Tribunal dismisses Applications numbered 2016/00378240, 2016/00378241 and 2016/00378242 under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), because Mr Burns has withdrawn each of these Applications.
No reference to file 2016/00378242 was otherwise made in the list of proceedings governed by the order, but nothing turns on this in the appeal.
The appellant relies on three issues, being an alleged denial of procedural fairness in the process leading to the Decision being made, an allegation that the Decision was, in essence, unreasonable and that it was made under the Anti-Discrimination Act without due regard for the prerequisites to making such a decision.
Despite accepting that there may have been a procedural error made by the Tribunal in making the Decision, in that it made an order in respect of one of the proceedings whilst a stay may have been in effect and made the Decision without notice to the Parties, we have decided not to exercise our discretion to extend time for lodging the Notice of Appeal, for the reasons that follow.
[2]
Background
The background of the dispute between the parties, and the procedural history, was collated and synthesised by Harrison J dealing with a challenge by the appellant to the constitutional validity of Part 3A of the NCAT Act, in Gaynor v Local Court of NSW & Ors [2019] NSWSC 805 at [5] to [17], as follows:
"5. For some years, Mr Gaynor and Garry Burns have been involved in a series of disputes. Mr Gaynor lives in Queensland. Mr Burns lives in New South Wales. Mr Gaynor is a conservative blogger focussing on issues regarding national security, politics and the defence of the traditional family unit. 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.
6. Since May 2014, Mr Burns has made 36 complaints to the President of the Anti-Discrimination Board pursuant to the Anti-Discrimination Act 1977 against Mr Gaynor. Of these complaints, 23 have been referred by the President to the New South Wales Civil and Administrative Tribunal pursuant to s 93C of that Act. That section is in these terms:
"93C Other referral of complaints to Tribunal
If the President:
(a) is of the opinion that a complaint cannot be resolved by conciliation, or
(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, or
(d) is satisfied that all parties wish the complaint to be referred to the Tribunal and that it is appropriate in the circumstances to do so,
the President is to refer the complaint to the Tribunal."
7. Under that section, the President is entitled and obliged to refer certain complaints made under the Anti-Discrimination Act to the Tribunal. For example, where the President "is of the opinion that a complaint cannot be reserved (scil resolved) by conciliation", he or she is obliged by s 93C to refer the complaint to the Tribunal. Some of Mr Burns' complaints were apparently referred to the Tribunal in groups and treated as constituting a single set of proceedings before the Tribunal. As a result, the number of proceedings commenced in the Tribunal in relation to the complaints is less than the total number of referred complaints.
8. There has been no hearing on the merits in relation to any of the complaints.
9. On 8 December 2014, Mr Gaynor made an interlocutory application to the Tribunal which was treated as an application for summary dismissal of the Tribunal proceedings pursuant to s 102 of the Anti-Discrimination Act. That application was refused but in circumstances involving error. By consent, an Appeal Panel of the Tribunal granted leave to appeal and allowed the appeal. The Appeal Panel also remitted the summary dismissal application for rehearing and ordered Mr Gaynor to pay Mr Burns' costs of the appeal to the Appeal Panel. That was because the Tribunal was said to have been led into error by a course taken on behalf of Mr Gaynor before the Tribunal as originally constituted and because the error which necessitated the grant of leave to appeal and the allowing of the appeal was not raised by Mr Gaynor either in his notice of appeal or in his submissions.
10. The Appeal Panel also ordered that the other proceedings then pending between Mr Burns and Mr Gaynor in the Tribunal be stayed pending the determination of the interlocutory application filed on 8 December 2014 (including any internal or external appeal from the determination of that application): see Burns v Gaynor [2015] NSWCATAP 184 at [6].
11. On the remitter, the Tribunal dismissed the proceedings before the Tribunal in relation to the first group of referred complaints (first three referred complaints) on the grounds that there had been no "public act" in New South Wales, with the result that the conduct complained of could not constitute a contravention of the Anti-Discrimination Act or regulations made under the Act. That decision was the subject of an appeal by Mr Burns to an Appeal Panel but that appeal has not yet been determined."
[3]
Should an oral hearing be conducted?
At a call-over conducted on 12 May 2020, the Appeal Panel sought submissions from the parties on whether a hearing of the appeal could properly be dispensed with, and the matter determined on the papers: NCAT Act, ss 50(2) and (3). Both parties agreed that this would be appropriate and, by order 4 of that date, the issue of whether a hearing should be dispensed with was reserved for consideration by the Appeal Panel.
The parties complied with directions made for filing submissions in the appeal. The appellant, in written submissions of 1 June 2020, indicated that due to the COVID-19 pandemic his submissions were "necessarily short and not the final submissions of the Appellant who in the circumstances now seeks leave for the hearing in this appeal to be an attendance hearing (sic)". Amended submissions were subsequently lodged by the appellant where this was again raised. The appellant brought an interlocutory application for orders providing for an extension of time to file further evidence and submissions. That application was dismissed by the Appeal Panel constituted by Deputy President Westgarth on 5 June 2020.
We have reviewed the evidence lodged and the written submissions of the parties. Notwithstanding the concerns of the appellant, we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents lodged: NCAT Act, s 50(2). In our view, the parties have been given, and taken advantage of, a reasonable opportunity to provide submissions and have them considered in the proceedings: NCAT Act, s 38(5)(c).
We will make an order, under s 50(2) of the NCAT Act, dispensing with a hearing.
[4]
Appeal commenced out of time.
The Notice of Appeal records that the appellant received the Decision on 23 February 2018. It is not suggested that he sought written reasons under s 62 of the NCAT Act. The Appeal was not lodged until 28 April 2020, some two years beyond the 28 days allowed for filing the notice under rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
We may, however, extend time for lodging the Notice of Appeal: NCAT Act, s 41.
The relevant principles which might generally inform the exercise of our discretion in that regard were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") at [22]:
"22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
-Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable -Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
[5]
Does the appellant have a fairly arguable case, and can he demonstrate that strict compliance with the rules will work an injustice upon him?
The grounds in the Notice of Appeal were somewhat discursive. In essence, though, the appellant relies on the following grounds:
1. That the Tribunal made the Decision without power, as the relevant proceedings were stayed by order of the Appeal Panel on 27 April 2015 (Ground 1).
2. That the only appropriate order available to the Tribunal was to dismiss the remaining proceedings, under s 55(1)(b) of the NCAT Act or s 102 of the Anti-Discrimination Act, rather than to make the Decision. This ground is based on two arguments, advanced in the alternative, that either:
1. the consequence of the decision in Burns v Gaynor [2015] NSWCATAD 211, to dismiss the application before the Tribunal in that proceeding as misconceived where the Tribunal was not satisfied that there was a public act in New South Wales to ground the application, meant that the Tribunal should have dismissed the proceedings governed by the Decision on the same basis (Ground 2, limb 1); or
2. if the Tribunal was not satisfied that it had jurisdiction to determine the proceedings, they should have been dismissed as misconceived or lacking in substance (Ground 2, limb 2).
In his written submissions, the appellant also argues, without seeking to amend his Notice of Appeal, two further issues in support of the appeal:
1. Firstly, that he was denied procedural fairness by virtue of the Decision being made without any notice of the Tribunal's intention to make such a decision or the conduct of a hearing (the first additional argument); and
2. Secondly, that the Decision was made under s 108(2)(g) of the Anti-Discrimination Act, and should not have been made under that source of power in the absence of a finding that the complaints were substantiated after a hearing of that issue on the merits (the second additional argument).
[6]
Ground 1
The factual basis for the appellant's argument on this ground is partially correct. On 27 April 2015, in Gaynor v Burns [2015] NSWCATAP 184, the Appeal Panel upheld by consent an appeal from an order refusing an interlocutory application for summary dismissal of proceedings between these parties numbered 1410372 and remitted it for hearing. The Appeal Panel also ordered, as Order 3 ("the Stay"):
"The other matters between the appellant and the respondent before the Tribunal (being matters no. 1410625, 1570160 and A/P 15827 [scil AP 15/15827] are stayed pending the hearing and determination of the interlocutory application filed on 8 December 2014 and any internal or external appeal from that application."
The interlocutory application for summary dismissal was then reconsidered and determined by the Tribunal on 14 October 2015: Burns v Gaynor [2015] NSWCATAD 211. The Tribunal on the remitter dismissed the proceeding on the basis that there was no public act in NSW established ("the No Public Act Dismissal"). Mr Burns appealed that decision to the Appeal Panel. He subsequently abandoned that appeal, but not until 31 May 2018.
The Decision was made before the conditions for the Stay to expire had been met. We accept, on that basis, that one but not all of the proceedings encompassed by the Decision were the subject of an order made by the Appeal Panel for a stay.
Thirteen proceedings were governed by the Decision. Of those, the Stay only purported to affect proceeding 15/70160 (which was reallocated the proceeding number 2015/00383064).
The respondent accepts that the proceeding numbered 2015/00383064 encompassed complaints referable to one of the three proceedings now pursued by him in the Local Court.
On that basis, this ground raises a valid issue in respect of the proceeding numbered 2015/00383064 only.
The appellant submits that the Tribunal should not permit orders to remain on its record which were beyond its power to make, citing Yirrell v Yirrell [1939] 62 CLR 287; [1939] HCA 33 ("Yirrell"), referred to in Katter v Melham [2015] NSWCA 213, per Latham CJ at [138] to [141], where His Honour said:
"138. The entering of inconsistent judgements is a jurisdictional error which appears on the face of the record of the District Court. The failure to accord natural justice is also a jurisdictional error, though not one of apparent from the face of the record. Each provides a basis on which the court might, in the exercise of its discretion, quash the judgment for $1 million.
139. Mr King submits that there is no discretion in the Court to refuse a writ of prohibition if it appears on the record of an inferior court subject to its jurisdiction that a jurisdictional error has occurred. In Yirrell v Yirrell a writ of prohibition was granted against the order of an inferior court notwithstanding that the order had been made some 14 years previously. Various of the High Court judges stated that when the lack of jurisdiction appears on the face of the court order the Court has no discretion and is bound to issue prohibition.
140. Since then there have been repeated statements in the High Court that its own power under the Constitution to issue writs of prohibition is discretionary. Those statements are not determinative of the power of this Court to make an order in the nature of prohibition against the District Court. However some High Court judges, though not a majority in a case, have expressed the view that ordinary prerogative relief is also discretionary. In New South Wales section 69 of the Supreme Court Act 1970 (NSW) has replaced the common law jurisdiction to issue prerogative writs (other than habeas corpus) with a jurisdiction to make orders under section 69. In Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales, this change in the authority to make the orders led Spigelman CJ to "proceed on the basis that, in New South Wales, an order in the nature of prohibition is discretionary in all cases, but should issue "almost as of right". I shall proceed on the same basis.
141. The same factors bear upon the exercise of discretion to grant certiorari and prohibition as bear upon the decision whether to grant an extension of time. The balance of those factors favours the grant of relief, of both types."
(citations omitted)
[7]
Ground 2, limb 1
This limb of ground 2 is argued as there being "no power permitting NCAT to decline to determine matters in circumstances where a valid determination has already been made." The appellant relies on the No Public Act Dismissal as the basis for this assertion. Whilst the appellant's submissions on this issue are not clear, they are best described in the Notice of Appeal as "meaning that the respondent accepts the ruling in the test case for all matters between the respondent and the appellant that all matters against the appellant are misconceived". We take this as an allegation that the Decision was made without power or in a manifestly unreasonable exercise of power, as there was an issue of res judicata arising between the parties or an estoppel which could have been raised.
It is unnecessary to delve further into those issues, however, and this limb of ground 2 may be quickly disposed of as it is underpinned by an assumption that the No Public Act Dismissal was operative and binding between the parties. It could not be, as it was made in the purported exercise of federal jurisdiction, and therefore beyond the power of the Tribunal. For that reason it may be treated as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. Arguably that leaves proceeding 2015/00383064 open before the Tribunal. To provide clarity to the parties the Tribunal could provide the parties with formal notice of whether it has formed an opinion as to whether the claim amounts to one invoking federal jurisdiction. As we are not disposed to grant leave to extend time for filing the Notice of Appeal, this is not a function we may undertake: NCAT Act, s 81(2).
While the parties may invite the Administrative and Equal Opportunity Division to do so, this seems unnecessary. We note that s 34B of the NCAT Act does not, on its terms, require such an indication, or indeed an order dismissing the proceedings in the Tribunal for want of jurisdiction, as a prerequisite to seeking leave to bring proceedings in an authorised court. Indeed, it provides no guidance to the Tribunal about what, if any, orders the Tribunal should make if it forms the opinion that an application or appeal brought to it involves a federal matter. However, we understand that an authorised court may seek confirmation that the matter will not proceed in the Tribunal, in the course of considering whether leave to proceed in that Court should be granted.
[8]
Ground 2, limb 2
What the appellant sought was an order that the proceedings be dismissed under s 55(1)(b) of the NCAT Act as misconceived or lacking in substance or, alternatively, under s 102 of the Anti-Discrimination Act, which extends the powers of the President of the Anti-Discrimination Board under s 92 of that Act to the Tribunal in determining complaints:
102 Tribunal may dismiss complaint
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
….
92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
…
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint.
For the reasons set out above, a decision under s 102 of the Anti-Discrimination Act could not have been made, as it requires adjudication on the complaint in the exercise of judicial power to determine the justiciable controversy.
We do not need to determine whether the Tribunal could have dismissed the proceedings under s 55(1)(b) of the NCAT Act as misconceived or lacking in substance, because it certainly had no power to do so in a way which created a binding determination on the merits of the justiciable controversy between the parties. This is precisely what the Court of Appeal said could not be done as it would constitute the exercise of judicial power in respect of a federal matter.
As Leeming JA continued, at [11] in Wilson:
"… NCAT could not, for example, determine following a hearing confined to the issue of liability whether or not a respondent was liable, for that would be to exercise judicial power in respect of part of the matter. That constitutional inhibition extends to orders for interlocutory relief, which are also part of the same "matter" (just as the committal for trial is part of the curial determination of charges in respect of federal offences: cf The Queen v Murphy (1985) 158 CLR 596 at 617-618; [1985] HCA 50). Instead:
1. the proceeding may be dismissed for want of jurisdiction;
2. the proceeding may alternatively be transferred to a court which has jurisdiction: Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [41]-[54], [86], [133]-[137], and
3. contrary to Mr Wilson's submission, NCAT may make an adverse costs order against the applicant."
[9]
The first additional argument
In submissions, the appellant also raised, for the first time, an allegation that the decision was procedurally unfair as he was not given notice of the Tribunal's intention to make the Decision. The appellant had also previously brought an application for summary dismissal of each of the proceedings the subject of the Decision, which had not been listed for hearing.
It would have been proper for the parties to have had notice of the Tribunal's intention to make the Decision after dispensing with a hearing and the opportunity to make submissions on both of those issues: NCAT Act, ss 50(2) and (3).
Again, though, the appellant lost no opportunity to obtain a more favourable result through this deficiency. There was no practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6.
[10]
The second additional argument
This was not relied on as a ground of appeal. It relies on an assumption by the appellant that the Tribunal made the Decision in reliance on upon s 108(2)(g) of the Anti-Discrimination Act, reproduced below:
108 Order or other decision of Tribunal
…
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following -
…
(g) decline to take any further action in the matter.
The appellant draws attention to the similarity in the words "decline to take any further action" in that section, and the wording of the order made in the Decision, wherein the Tribunal indicated that it "…declines to determine Applications…". The appellant has drawn an inference, which we are invited to accept, that this similarity indicates that the Tribunal made the order in erroneous reliance on s 108(2)(g). There is no proper basis for us to do so. The appellant's assumption ignores the balance of the order, wherein after setting out the various proceedings, the Tribunal explains the basis for the order, as follows:
"…because the determination of each Applications (sic) involves the exercise of federal diversity jurisdiction. The Tribunal notes that the applicant states that he intends to apply to an authorised court under 34B of the Civil and Administrative Tribunal Act 2013 (NSW) to determine these applications."
This argument adds nothing to the strength of the appeal.
The appeal has no merit. Even if the appeal were to be allowed, we would not be minded to give substantive relief or vary the Decision, for the reasons we have set out. On that basis the appellant has not demonstrated that strict compliance with the rules will work an injustice upon him.
Having made that determination, there is no need for us to consider in depth the balance of the considerations set out in Jackson. We note, though, that the delay in lodging the Notice of Appeal is exceptionally long. We also find the reason for this propounded by the appellant, which is in essence that he was delayed in lodging the appeal by the "lengthy and complicated constitutional and jurisdictional proceedings in this matter," unconvincing. A delay of this nature can only cause further complication and lead to further delay, which is what has occurred by the lodgement of this appeal.
Leave to extend time for filing the Notice of Appeal is refused.
[11]
Orders
We make the following orders:
1. A hearing in relation to the appeal is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. Leave to extend time for filing the Notice of Appeal is refused.
[12]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 October 2020
Order: (1) Hearing dispensed with under s 50(2) of the NCAT Act; (2) Leave to extend time for filing the Notice of Appeal is refused.
We would add that this appeal was withdrawn by Mr Burns on 31 May 2018. His Honour continued, at [12]:
"12. On 3 February 2017, the Court of Appeal disposed of three originating processes which had been filed by Mr Gaynor and were pending before that Court. Two of those were disposed of by making a declaration to the effect that the Tribunal was not authorised to decide the first three complaints: see Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [110]. That declaration was made on the basis that a State tribunal that is not a "court of a State" within the meaning of the Commonwealth Constitution is unable to determine matters between residents of different States (diversity matters) because a State law which purports to authorise any such tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act 1903 (Cth) of all such jurisdiction in State courts: see Burns v Corbett; Gaynor v Burns at [95]. It was common ground before the Court of Appeal that the Tribunal is not a "court of a State" within the meaning of the Commonwealth Constitution: see also AG (NSW) v Gatsby [2018] NSWCA 254.
13. The third originating process, being an appeal made by leave from the Appeal Panel's costs order referred to above, was dismissed but on the basis that the conclusions reached in relation to the other two originating processes were sufficient to demonstrate that the Appeal Panel's costs order could not be enforced.
14. On 1 December 2017, cl 1.2 of Schedule 1 to the Justice Legislation Amendment Act (No 2) 2017 commenced. That clause inserted a new Part 3A, part of which includes s 34B, into the NCAT Act, which confers jurisdiction on the Local Court and the District Court in relation to certain applications and appeals that "the Tribunal does not have jurisdiction to determine because its determination involves the exercise of federal diversity jurisdiction".
15. An appeal by Mr Burns, the Attorney General and the State of New South Wales from the orders made by the Court of Appeal on 3 February 2017 was dismissed by the High Court on 18 April 2018: Burns v Corbett; Burns v Gaynor; AG (NSW) v Burns; NSW v Burns (2018) 353 ALR 386; [2018] HCA 15.
16. After the decision of the High Court, some of the proceedings then pending in the Tribunal between Mr Burns and Mr Gaynor were purportedly dismissed by the Tribunal. The tribunal has also formally declined to determine ten of the proceedings before it on the grounds that those proceedings arose in "federal diversity jurisdiction". There would now appear to be only one Tribunal proceeding that has not been the subject of a formal indication by the Tribunal to the effect that it does not propose to determine it. There is no suggestion, however, that the Tribunal intends to purport to determine that proceeding or that Mr Burns intends to invite the Tribunal to do so.
17. In relation to three of the ten proceedings that the Tribunal has formally declined to determine, Mr Burns has applied to the Local Court for leave to commence proceedings in that Court pursuant to Part 3A of the NCAT Act. Those proceedings have not been dealt with by the Local Court and have been stayed pending Mr Gaynor's application in these proceedings seeking, among other orders, a declaration that the Local Court proceedings are "void and of no effect"."
For context, we have italicised and placed in bold the reference to the Decision in the passage above.
In dismissing the proceedings before him, Harrison J found, at [78]:
"There is nothing in my opinion in any of Mr Gaynor's arguments that casts any doubt upon the validity of Part 3A of the NCAT Act. Mr Gaynor's success in the High Court was predicated upon the ill-fated attempt to confer federal jurisdiction upon a state administrative tribunal. The amending provision does not purport confer NCAT's non-existent jurisdiction in federal diversity matters upon the Local Court. That should be the end of the matter. Mr Gaynor's several other characterisations of his principal line of attack upon Part 3A are all without any merit."
The appellant unsuccessfully sought leave to appeal the decision of Harrison J: Gaynor v Attorney General of New South Wales [2020] NSWCA 48. The Court of Appeal in that decision rejected any constitutional challenge to the validity of Part 3A of the NCAT Act.
We understand that the appellant has sought special leave to appeal that decision to the High Court.
The appellant also relies on the comments of Leeming JA in Burns v Gaynor [2017] NSWCA 3, at [95] and [97]. We have reproduced those paragraphs, without omission of [96], below:
"95. I have concluded that a State tribunal which is not a "court of a State" is unable to exercise judicial power to determine matters between residents of two States, because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) read with s 39A of the Judiciary Act of all such jurisdiction in State courts. That result accords with the settled view of the operation of s 39(2) in relation to the exercise of State jurisdiction by State courts.
96. This decision says nothing concerning State tribunals not exercising judicial power. It therefore says nothing about the existing operation of the Anti-Discrimination Board. Nor does it stand in the way of State tribunals forming an opinion in the manner described in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 (something favoured by Muir JA in Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 at [115] and [130]-[132], by Perry J in Lustig at [62] and by Professor Lindell: G Lindell, Cowen and Zines's Federal Jurisdiction in Australia (4th ed 2016, Federation Press), pp 315-6).
97. Section 109 of the Commonwealth Constitution provides that the State law is inoperative "to the extent of the inconsistency". The foregoing reasoning applies to the resolution by judicial power of the entirety of a dispute between the residents of two States. It follows that there is no operative power to refer such a complaint from the Anti-Discrimination Board to NCAT, nor for NCAT to determine a complaint which has been referred, nor for NCAT's order purporting to determine such a complaint to be enforced. That suffices to make final orders resolving the proceedings in this Court."
We also note the recent comments of the Tribunal in Dalton v Qantas Airways Ltd; Dalton v Morrison [2020] NSWCATCD 2, at [35] to [38]:
"35. In Attorney General for New South Wales v Gatsby [2018] NSWCA 54 (Gatsby) the Court of Appeal decided that this Tribunal had no jurisdiction to determine a matter arising under s 75(iv) of the Constitution (which dealt with disputes between residents of different States). This was because the Tribunal was exercising judicial power in respect of a federal matter and was not a court of a State for the purpose of Chapter III of the Constitution: Bathurst CJ at [125]-[128] and [184]-[192]; Beazley P, McColl JA and Leeming JA agreeing re judicial power and Beazley P, McColl JA, Basten JA and Leeming JA re court of a State (references omitted). Consequently, disputes between residents of different States in which a landlord was seeking an order for termination of a residential tenancy agreement under the Residential Tenancies Act, 2010 (NSW) could not be determined by the Tribunal, the matter falling to be dealt with under the then Part 3A of the NCAT Act.
36. Having determined the Tribunal did not have jurisdiction to deal with the application, the Court in Gatsby made an order remitting the proceedings to the Tribunal "to be dealt with in accordance with Part 3A of the Civil and Administrative Tribunal Act, 2013 (NSW)". I infer from this order that, while unable to determine the dispute in Gatsby, the Tribunal did have an administrative role in connection with the application made to the Tribunal in consequence of the provisions of Part 3A. Such administrative action might include:
(1) declining to deal with the proceedings because the Tribunal lacks jurisdiction;
(2) making an administrative decision to dismiss the application because of the lack of jurisdiction;
(3) providing relevant documents to a court for the purpose of determining any leave application under s 34B(3) of the NCAT Act or for the purpose of a court determining an application under s 34C in consequence of the grant of leave; or
(4) complying with any orders under s 34C(1)(b) of the NCAT Act a court which (sic) might make "in relation to the Tribunal" to "facilitate its determination of the application that might be made
37. At that time, Part 3A was titled "Diversity Proceedings" and dealt with "federal diversity jurisdiction" which meant "jurisdiction of the kind referred to in section 75 (iv) of the Commonwealth Constitution": definitions - s 34A of the then NCAT Act. This meant a person unable to pursue their claim in the Tribunal because it involved federal diversity jurisdiction could seek leave of a court to continue with their claim in that court: ss 34B and 34C of the then NCAT Act.
38. Since the decision in Gatsby, Part 3A of the NCAT Act has been amended. It is now titled "Federal proceedings". In the current Part 3A "federal jurisdiction" means jurisdiction of the kind referred to in section 75 or 76 of the Commonwealth Constitution: definitions - s 34A NCAT Act. However, the procedural requirements for leave and continuation of proceedings in a court after leave is granted as provided in ss 34B and 34D remain the same. That is, leave can be sought from a court by a person who has lodged an application in the Tribunal to continue with that claim in the court when the claim involves federal jurisdiction."
We agree with this summary, although it is important to note that the reference by the Deputy President to an "administrative decision" to dismiss an application does not appear to relate to the question of whether the nature of the power exercised in doing so would be an exercise of "administrative" or "judicial" power. Rather, the significance of this reference is that it makes it clear that the decision would not be one on the merits, creating a binding resolution of the dispute between the parties. It could not be, as clarified by the Court's decision in Gatsby and as recently reinforced by the Court of Appeal in Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 ("Wilson") where Leeming JA said, with MacFarlan JA agreeing, at [11]:
"Where an applicant commences proceedings which are outside NCAT's jurisdiction for the reasons identified in Burns v Corbett, then the range of orders which may be validly made by NCAT is highly circumscribed. NCAT may not exercise judicial power to determine any part of the justiciable controversy; to do so would be to exercise the judicial power of the Commonwealth and that it cannot do…"
It would arguably be open for us to find that the Stay was, in fact, not effective as the Appeal Panel in making that order was exercising federal jurisdiction in doing so. The parties made no submissions on that point, however, and so we will consider this issue giving the appellant's argument the benefit of assuming the Stay was effective when the Decision was made.
In that regard, the Decision can be distinguished from those referred to in Yirrell, Katter v Melham and Burns v Gaynor [2017] NSWCA 3, as it does not create any binding determination between the parties. Rather, it was the manifestation of the Tribunal "forming an opinion as to whether the claim amounts to one invoking federal jurisdiction": Wilson at [14].
In any event, given the more recent acknowledgment that the Courts consider it a discretionary exercise to grant prohibition where there is an error on the face of the record of an inferior court or tribunal as set out in Katter v Melham, we do not see the Tribunal's potential error in making the Decision, insofar as it related to proceeding 2015/00383064 after the Stay had been granted, as having relative merit in causing us to vary, quash or set aside the decision if an extension of time is granted.
This is reinforced when proper consideration is given to whether any practical injustice arises from the Decision. It is not argued that the effect of a dismissal of the proceeding for want of jurisdiction would prevent the respondent exercising his right to seek leave to bring proceedings in the Local Court under Part 3A of the NCAT Act. That would be the only other form of decision available to us or the Tribunal if the matter was to be re-determined rather than to decline to deal with the application. If there are other arguments the appellant wishes to raise as to the validity of the proceedings in the Local Court, he may raise them there.
For completeness, this argument also relies upon an assertion, unproven in this appeal, that the nature of the complaints in each of the proceedings encompassed in the Decision relied upon a sufficiently similar factual matrix to that in the No Public Act Dismissal as to make it inevitable that the decisions in the other proceedings would be the same. There is no evidence before us in the appeal to establish that assertion. Even if there was, we do not accept that the consequence contended for by the appellant would flow. The appellant contends that the proceedings in the No Public Act Dismissal were a "test case," which we take to mean that the respondent in some way agreed that his rights in all relevant proceedings encompassed by the Decision would be determined by that decision, or that the respondent agreed to bind himself to adopt a certain course depending on the outcome of that proceeding. That is not conceded by the respondent, nor is there any evidence before us to that effect.
This limb of ground two fails.
We note that the second option referred to by his Honour is available only in respect of applications within the Consumer and Commercial Division of the Tribunal: NCAT Act, Sch 4, cl 6, there otherwise being no express power of the Tribunal to transfer the proceedings to a court and no basis to infer such a power. To the contrary, Part 3A makes clear it is for the court to grant leave to allow for proceedings to continue in that jurisdiction.
We are satisfied that no injustice was caused by the Decision on this second limb of Ground 2, warranting an extension of time for filing the Notice of Appeal.