Gaynor v Burns

1. The Notice of Appeal was filed with the Tribunal on 11 April 2025 and an Amended Notice of Appeal was received on 14 May 2025. Under the amended notice six grounds of appeal were set out. At the appeal hearing, Mr Gaynor did not rely on ground 6. The five remaining grounds of appeal are:

(1) Whether the Tribunal was required to follow the principles of procedural fairness and hear the parties as to the jurisdiction of the Tribunal to hear and determine a referral from the Delegate of the President of the Anti-Discrimination Board pursuant to s 93C of the Anti-Discrimination Act, before deciding whether the Tribunal had the jurisdiction to hear and determine that referral.

(2) Whether the Tribunal when considering its jurisdiction to hear and determine a referral pursuant to s 93C of the Anti-Discrimination Act, asked itself the wrong question by considering only whether the referral attracted Federal Jurisdiction.

(3) Whether the Tribunal should have considered and determined all aspects of its jurisdiction to hear and determine the referral before dismissing for want of jurisdiction.

(4) Whether the Tribunal when considering its jurisdiction to hear and determine a referral pursuant to s 93C of the Anti-Discrimination Act should have considered as a determinate of that jurisdiction, whether s 49ZS and s 49ZT of the Anti-Discrimination Act had an extraterritorial operation that attached to the complained of conduct.

(5) Whether the Tribunal misconstrued s 34B(2) of Part 3A of the NCAT Act by failing to determine whether the Tribunal would "otherwise have jurisdiction to determine" as contemplated by s 34B(2)(c).

1. Various provisions in the Anti-Discrimination Act and the NCAT Act are relevant to this appeal. In order to understand the decision of the Tribunal and the issues in the appeal, it is worth setting out those provisions, if not in their entirety, at least in summary form.
2. Part 4 of the Anti-Discrimination Act deals with discrimination on the ground of homosexuality. Division 4 of Part 4 concerns homosexual vilification. Section 49ZT in Division 4 states that "it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group". A "public act" is defined in s 49ZS to include:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

1. Division 2 of Part 9 of the Anti-Discrimination Act sets out the process for making complaints to ADNSW, including who may make complaints and the form and content of complaints. In accordance with s 89B the President of the Anti-Discrimination Board may accept or decline a complaint. If the President accepts a complaint, the complaint must be investigated: s 90. The President may endeavour to resolve the complaint by conciliation: s 91A.
2. Sections 93A, 93B and 93C of the Anti-Discrimination Act provide for referral of complaints to the Tribunal. Of relevance to this matter is s 93C which provides:

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.

1. Where a complaint is referred to the Tribunal, the Tribunal has the functions set out in Part 9, Division 3 of the Anti-Discrimination Act. It is not necessary to detail those functions here.
2. Of importance to this appeal is s 34B of the NCAT Act. That section falls within Part 3A of the NCAT Act which is headed "Federal proceedings". As noted above, Part 3A provides a mechanism for matters to be heard by an authorised court instead of the Tribunal where the court is satisfied that the Tribunal does not have jurisdiction to determine the application because its determination involves the exercise of federal diversity jurisdiction: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [11].
3. Section 34B relevantly provides:

34B Applications or appeals involving federal jurisdiction may be made to authorised court

(1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal.

(2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that -

(a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and

(b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and

(c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and

(d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court.

(a) filed with the authorised court along with -

(i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and

(ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37 - a copy of the terms of settlement, and

(b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal.

1. The Tribunal's decision was partly concerned with the application that had been made by Mr Gaynor to stay the Tribunal proceedings pending the determination of proceedings he had commenced in the Supreme Court seeking judicial review of decisions of the President of the Anti-Discrimination Board to accept Mr Burns' complaint and to refer it to the Tribunal. The stay was refused by the Tribunal. That aspect of the Tribunal's decision is not the subject of this appeal and there is no need to reference it further.
2. The remainder of the Tribunal's decision dealt with a request by Mr Burns to dismiss his application to the Tribunal (which arose out of the referral of his complaint by the President of the Anti-Discrimination Board) on the basis that the Tribunal lacks jurisdiction to determine the application as it involves the exercise of federal diversity jurisdiction.
3. The Tribunal noted that it was not in dispute that Mr Burns and Mr Gaynor reside in different States and that the determination of the substance of Mr Burns' claim under the Anti-Discrimination Act would involve the impermissible exercise of federal jurisdiction by the Tribunal.
4. The Tribunal stated at [38] that Mr Burns had come to the Tribunal for the purpose of establishing to a court that:

(1) pursuant to s 34B(2)(a) of the NCAT Act he had first made an application to the Tribunal;

(2) pursuant to s 34B(2)(b) of the NCAT Act the determination of his application would involve an exercise of federal jurisdiction; and

(3) pursuant to the s 34B(2)(c) of the NCAT Act, the Tribunal would otherwise have jurisdiction to determine his application.

1. The Tribunal noted at [39] that the parties appeared to agree that the matters under s 34B(2)(a) and s 34B(2)(b) were met in this case. The Tribunal stated that, absence agreement, it would have been empowered to determine those questions as part of its first duty to establish the question of jurisdiction: Gaynor v Attorney General of New South Wales at [134]-[137].
2. The Tribunal also noted at [40] that in Gaynor v Burns [2025] NSWSC 185 at [112] in dismissing Mr Gaynor's judicial review application, N Adams J also noted that:

Although the plaintiff initially submitted, as an additional argument, that it was futile for the matter to be referred to NCAT (because it is common ground that NCAT does not have the jurisdiction to hear this complaint), the plaintiff ultimately accepted, putting the extraterritorial argument to one side, that the only way that Mr Burns could have his complaint heard in the Local Court was to commence it with the ADB and have it rejected by NCAT.

1. The Tribunal at [41] dismissed the proceedings for want of jurisdiction. In doing so, the Tribunal at [42] expressly declined to determine whether s 34B(2)(c) of the NCAT Act was met. That is, whether the Tribunal would otherwise have jurisdiction to determine Mr Burns' application. The Tribunal stated that it is apparent from a plain reading of s 34B(2) as a whole that those matters are to be considered by the court to whom an applicant applies subsequent to the dismissal of an application. The Tribunal further stated that it had "nothing to do in that regard".

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
2. There are several important cases relevant to the construction of s 80 of the NCAT Act. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act.
3. The Appeal Panelthere said, inter alia, that (citations omitted):

(1) Absent leave to appeal, the question of law is the subject matter of the appeal. The question of law should be articulated with precision.

(2) A question of law means a pure question of law.

(3) A "pure question of law" does not depend on facts not found.

(4) A mixed question of fact and law is not a question of law. An appeal is "on" any question of law: s 80(2) of the NCAT Act.

(5) The question of law must not be hypothetical or arid.

(6) An appeal is against orders and not reasons. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31]-[32].
2. Where leave to appeal is required, the Tribunal has a discretion to grant leave which, as stated in Collins v Urban [2014] NSWCATAP 17 at [84(2)], will generally only be exercised in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Section 81(1) of the NCAT Act permits the Appeal Panel, when determining an internal appeal, to make such orders as it considers appropriate in light of its decision on the appeal, providing for (but not limited to):

(a) the appeal to be allowed or dismissed;

(b) the decision under appeal to be confirmed, affirmed or varied;

(c) the decision under appeal to be quashed or set aside;

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it;

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. We now turn to the grounds of appeal. We are satisfied that the appeal grounds each raise an error on a question of law. The first ground raises a question as to whether the Tribunal denied Mr Gaynor procedural fairness. The remaining grounds are interrelated and, in essence, concern whether the Tribunal misconstrued its jurisdiction and functions under s 34B(2)(c) of the NCAT Act.

1. Mr Gaynor states that the matter before the Tribunal was his application for a stay pending the determination by the Supreme Court of the judicial review proceedings. He states that the parties were not heard as to the Tribunal's jurisdiction to determine the substantive application and that portion of the decision of the Tribunal that dealt with jurisdiction was decided on the papers presented in support of the stay application. He notes that both the stay application and the jurisdictional issue were determined the day after judgment in the judicial review proceedings was published and, with reference to the Tribunal decision, the judicial review decision of the Supeme Court was clearly read by it.
2. Mr Gaynor submits that he was denied procedural fairness as the Tribunal did not hear the parties on the jurisdiction question after the judicial review proceedings were decided in circumstances where the Tribunal knew that Mr Gaynor sought a determination of the issue as to whether the Tribunal otherwise had jurisdiction to determine his application: see s 34B(2)(c) of the NCAT Act. He states that his challenge to the jurisdiction of the Tribunal to hear and determine the case was mischaracterised by the Tribunal in its decision as being limited to residence. However, the challenge went beyond residence and was to the effect that ss 49ZS and 49ZT of the Anti-Discrimination Act have no extraterritorial operation and that there was no power in the Tribunal to otherwise determine the case before it. He further states that the extra-territorial issue was not decided in the judicial review proceedings and therefore remained a live issue before the Tribunal.
3. It is not clear to us when, as the Tribunal records in its decision, Mr Burns made a request that the Tribunal dismiss his application for want of jurisdiction. We have not been provided with a copy of any such request. However, Mr Gaynor does not suggest that such a request was not made and we accept that it was. We note that Mr Burns had initially raised the issue of federal diversity jurisdiction and the need to go to the Local Court in his complaint to ADNSW.
4. The solicitor acting for Mr Gaynor, Mr Robert Balzola, has provided a statutory declaration in the appeal. He states that he appeared before the Tribunal on 14 August 2024 instructing Mr Rasmussen of Counsel. He states that at no time did the Tribunal seek or request oral submissions in respect of the temporary stay application or any other application made by the parties. He states that no submissions were made on the substantive application before the Tribunal as to its jurisdiction and the proceedings were adjourned sine die.
5. The problem with the arguments advanced by Mr Gaynor is that:

(1) before the Tribunal he did not dispute that it lacked jurisdiction to determine the application as it involved the exercise of federal diversity jurisdiction;

(2) his application to the Tribunal for a stay lodged on 3 June 2024 referred to the "statutory and jurisdictional questions of law" then presently before the Supreme Court; and

(3) the judicial review summons filed by him in the Supreme Court on 30 May 2024 had as one of its grounds (along with other grounds as to federal jurisdiction) that that the delegate of the President of the Anti-Discrimination Board, in deciding to accept Mr Burns' complaint and then refer it to the Tribunal, failed to take into account:

(a) that there is a presumption against the extra-territorial operation of the Anti-Discrimination Act;

(b) that the alleged public act of homosexual vilification did not occur in NSW; and

(c) that ADNSW was bound by earlier authority that placement on the internet by a person situated in a state other than NSW was not a public act in NSW within the meaning of s 49ZS of the Anti-Discrimination Act.

1. It was thus clear from his own materials that Mr Gaynor was disputing the jurisdiction of the President of the Anti-Discrimination Board and the Tribunal to deal with Mr Burns' complaint on the basis that to do so involved an exercise of federal diversity jurisdiction and on the basis that there was no public act in NSW within the meaning of s 49ZS of the Anti-Discrimination Act. This was apparent by 30 May 2024 and formed part of the stay application lodged with the Tribunal on 3 June 2024.
2. On 5 June 2024, the Tribunal made directions for the filing of submissions on the "application for interim orders and on the question of the application of Part 3A of the Civil and Administrative Tribunal Act 2013". Mr Gaynor was to file his submissions by 3 July 2024, Mr Burns was to file submissions by 12 July 2024 and Mr Gaynor was to file any reply submissions by 19 July 2024. The decision of the Tribunal was reserved after 19 July 2024. It was thus apparent that a decision would be made after considering the written submissions of both parties.
3. Mr Balzola states that Mr Gaynor filed his submissions on 1 July 2024 and Mr Burns filed submissions in response on 3 July 2024. The Tribunal made further orders on 2 August 2024 directing Mr Burns to serve his 3 July 2024 submissions by email to Mr Gaynor by 5:00 pm on 5 August 2024 and for Mr Gaynor to serve any reply submissions by email to Mr Burns by 5:00 pm on 12 August 2024. The decision on the interlocutory application would then be reserved after 12 August 2024. A notation to those orders indicates there had been some difficulties which meant there had been delay in complying with the 5 June 2024 orders. Mr Gaynor was therefore allowed further time to provide reply submissions.
4. On 8 August 2024, the Tribunal listed the matter on 14 August 2024 and directed both parties to appear in person and bring with them copies of all submissions filed with the Tribunal. A notation to these directions states that the parties had informed the Tribunal they were not receiving each other's documents and that the matter was listed to facilitate the exchange of material. The Tribunal also noted that any necessary further directions to progress the matter would be made.
5. Mr Balzola states that he filed written submissions in reply on 14 August 2024. We have not been provided with a copy of any orders made on 14 August 2025 or a transcript of what was said on that day. However, we have been provided with a copy of the parties submissions filed with the Tribunal in accordance with the directions made on 5 June 2024 as later amended.
6. Mr Gaynor's submissions filed 1 July 2024 addressed whether a stay should be granted pending determination of the judicial review proceedings. Those submissions made no mention of Part 3A of the NCAT Act or to any other matter relating to the Tribunal's jurisdiction to deal with Mr Burns' complaint.
7. In his submissions dated 3 July 2024 in which he opposed the stay, Mr Burns referred to Part 3A of the NCAT Act and also to the extraterritorial operation of the Anti-Discrimination Act. In respect of the latter Mr Burns stated that the issue of the extraterritorial operation of the Act does not apply to his application to the Tribunal. He stated that ADNSW was not bound by the decision of this Tribunal in Burns v Gaynor [2015] NSWCATAD 211 ("the 2015 decision") (which was referred to in Mr Gaynor's judicial review summons). We note that in that decision the Tribunal held that a "public act" was committed where material was posted on the internet rather than where it was read. As we read Mr Burns submissions, he submitted that the 2015 decision of the Tribunal was somehow overtaken by the High Court's decision in Burns v Corbett.
8. In his submissions in reply of 14 August 2025 Mr Gaynor referred to Mr Burns' submissions about the 2015 decision which he stated were incorrect. However, he made no substantive submissions about any issue concerning extraterritorial operation of the Anti-Discrimination Act other than to say that Burns v Corbett said nothing about an act of publication in NSW and whether publication on the internet could or could not establish jurisdiction.
9. Mr Gaynor states that he was not given an opportunity to make oral submissions on 14 August 2025. In the absence of any transcript of the directions hearing held that day we are not in a position to determine what happened. We note that the Appeal Panel issued directions to the parties to the effect that, if they relied on what occurred at a hearing, they must provide a transcript or recording. Mr Gaynor did not do so. At the appeal hearing Mr Gaynor sought an adjournment to obtain a transcript. We refused that adjournment as he had been given a clear direction in this regard, provided no explanation for why he had not provided a transcript and to grant an adjournment would delay the appeal. In respect of the latter point we were of the view that delay would not be in keeping with the guiding principle in s 36 of the NCAT Act.
10. It is clear that Mr Gaynor was afforded an opportunity to make written submissions and, indeed, did so. Mr Gaynor was directed to provide submissions on the stay application and on Part 3A of the NCAT Act. That he chose to only make written submissions on the stay application and not on Part 3A was a matter for him. In the absence of knowing what transpired on 14 August 2024, we are unable to draw any inference that Mr Gaynor was denied an opportunity that day to make any supplementary oral submissions. In any event, Mr Gaynor does not say that he was so denied.
11. Mr Gaynor states that he should have been given an opportunity to make further submissions following determination by the Supreme Court of his judicial review application. We are not satisfied that the Tribunal should have done so as Mr Gaynor had been given every opportunity to provide submissions on Part 3A of the NCAT Act, which includes s 34B(2)(c) - the provision Mr Gaynor states is not met by Mr Burns' application. Mr Gaynor was clearly on notice by the Tribunal's directions that a decision would be made on the basis of the parties' written submissions.
12. In the circumstances, we do not find that Mr Gaynor was denied procedural fairness. This ground of appeal is not made out.

1. As noted above, these grounds are interrelated and each states a similar proposition in different ways. In essence, grounds 2 to 4 are that, in deciding whether the Tribunal had jurisdiction to determine Mr Burns' application, the Tribunal was required to determine all aspects of its jurisdiction to deal with the application and not only the federal diversity jurisdiction argument. Ground 5 is that the Tribunal misconstrued s 34B(2)(c) of the NCAT Act by failing to determine whether the Tribunal "would otherwise have jurisdiction to determine" the application before it in circumstances where jurisdiction is denied because the matter involves a claim between residents of different states.
2. Mr Gaynor argues that, irrespective of the federal diversity issue, the Tribunal would not have had jurisdiction to determine Mr Burns' application because the alleged publication on "X" (formerly known as "Twitter") is not a public act in NSW within the meaning of s 49ZS of the Anti-Discrimination Act. Thus, Mr Gaynor argues, an essential element to establish homosexual vilification under the Anti-Discrimination Act is absent. He argues that the public act, if it occurred, occurred in Queensland, and, as the Anti-Discrimination Act has no extraterritorial operation, the Tribunal lacks jurisdiction to determine the application.
3. Mr Gaynor also submits that the Tribunal erred in holding that it was not required to determine whether s 34B(2)(c) of the NCAT Act was met. The Tribunal had stated that the matters in s 34B(2) were matters for the court to determine, not the Tribunal.
4. Mr Gaynor invites the Appeal Panel to decide whether the Tribunal would otherwise have jurisdiction to determine Mr Burns' application in accordance with s 34B(2)(c) of the NCAT Act.
5. Mr Gaynor refers to a number of authorities which are to the effect that a court or tribunal has a duty to consider its jurisdiction to determine a matter before it. He particularly relies upon the High Court's judgement in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta Hobart v Cawthorn) that a state tribunal that is not a court has authority to decide whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its jurisdiction. At [63] to [65] of that judgement Edelman J spoke of the duty of a tribunal not to exceed its authority which necessarily requires that a tribunal must satisfy itself whether a claim made to it is within its limited authority.
6. Mr Gaynor submits that, as part of its duty to determine its jurisdiction, the Tribunal was required to consider all aspects of its jurisdiction including whether the Tribunal had power to otherwise determine the case before it. Mr Gaynor submits that it is not a matter for the authorised court to determine what the Tribunal's jurisdiction is, as the body best placed to do so is the Tribunal itself and it should do so as part of its duty. Mr Gaynor further makes a submission that an essential element of the grant of leave by an authorised court under s 34B(2) of the NCAT Act is a determination of the "otherwise jurisdiction" of the Tribunal. He states that "the opinion of the Tribunal as to this aspect of its jurisdiction was essential and the authorised Court cannot proceed to consider the leave application without it".
7. At the appeal hearing Mr Gaynor submitted that we should imply into s 34B(2) the words "and the Tribunal is satisfied" so that s 34B(2) reads:

(2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied, and the Tribunal is satisfied, that -

...

1. There is no basis for reading the suggested words into s 34B(2). In our view s 34B(2) is clear in its terms and requires the court, before itself exercising jurisdiction, to be satisfied of the matters in s 34B(2)(a) to (d).
2. As was stated by N Adam J in Gaynor v Burns at [46] in dismissing Mr Gaynor's judicial review application, the effect of the operation of Part 3A of the NCAT Act is that there is now a mechanism to resolve the controversy between Mr Burns and Mr Gaynor in the event that the Tribunal lacks jurisdiction. We note that Part 3A only applies in circumstances where the Tribunal lacks jurisdiction because the determination of the application would involve an exercise of federal jurisdiction. As N Adams J observed, if a resident of NSW wishes to bring a complaint against a resident of another state, he or she must first lodge the complaint with ADNSW who will then, if appropriate, refer it to the Tribunal. Part 3A does not provide a mechanism for the Tribunal to then refer the complaint to the authorised court. Rather, the complainant must then lodge the complaint in the court.
3. At [47] N Adams J stated that, under s 34B(2) of the NCAT Act, the authorised court may grant leave for the application to be made but only if satisfied of the four matters enumerated under that subsection. We also are of the view that it is a matter for the court, not the Tribunal, to be so satisfied. Indeed, in keeping with the authorities referred to by Mr Gaynor, the court itself must be satisfied that it has jurisdiction to determine the matter before it.
4. In addition, a factor strongly in favour of the view that it is the court, not the Tribunal, which must be satisfied of the matters s 34B(2)(a) to (d), is that s 34B(5) enables the court to remit a matter to the Tribunal for determination if the court is satisfied that the Tribunal has jurisdiction to determine it. This would require the court to determine that no issue of federal jurisdiction arises and that the Tribunal "would otherwise have had jurisdiction" to determine the matter.
5. In this matter the Tribunal dismissed Mr Burns's application for want of jurisdiction. Arguably, it did not need to take this step. All that is required by Part 3A is that Mr Burns's application was first made to the Tribunal. It would have been open to Mr Burns, his complaint having been referred to the Tribunal, to then make the appropriate application to the court on the basis that the matter involved the exercise of federal jurisdiction. However, in conformity with the duty of the Tribunal to satisfy itself as to its jurisdiction to determine a matter, it was appropriate for the Tribunal to make an order that it lacked jurisdiction. The Tribunal has power to make such an order as a necessary incident of its duty to act within its jurisdiction: Citta Hobart v Cawthorn at [21]. As noted above, if the Tribunal is wrong in respect of its determination that the matter involves the exercise of federal jurisdiction, the court has the power to remit the matter to the Tribunal so long as it would otherwise have jurisdiction to determine the matter.
6. There was no requirement that the Tribunal determine whether the requirements of s 34B(2)(c) were met. As N Adams J stated in Gaynor v Burns at [106]:

It is a matter for the body exercising judicial power (whether NCAT or an "authorised court" under Part 3A of the NCAT Act) to determine whether there was a public act in NSW, and whether that is the necessary criterion to establish jurisdiction under the AD Act.

1. In this matter there is no controversy that it involves the exercise of federal jurisdiction. The Tribunal, therefore, cannot exercise judicial power to determine the application. If Mr Burns makes an application to the court - a matter within his control - it will be the court that is called upon to exercise such power.
2. We are not satisfied that any error on a question of law was made by the Tribunal. The appeal must therefore be dismissed. There is no need for the Appeal Panel itself, as requested by Mr Gaynor, to address the question of extraterritoriality.
3. Even if we are wrong in our conclusions set out above, we would not allow the appeal in this case as to do so would be of no utility. As stated by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano, referred to above at [24]-[25], an appeal is against orders and not reasons and the question of law in the appeal must be capable of affecting the orders the subject of the appeal.
4. In this matter, the order appealed against is that the matter is dismissed for want of jurisdiction. Mr Gaynor does not contend that the Tribunal in fact has jurisdiction to determine Mr Burns' application. He simply seeks to add another ground to the reasons for dismissal. In circumstances where no order, other than dismissal, can properly be made in the original proceedings, it cannot be said that the appeal is capable of affecting the orders the subject of the appeal.

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.