Gaynor v Local Court of NSW & Ors

Background

1. 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.
2. 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."
3. 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 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.
4. There has been no hearing on the merits in relation to any of the complaints.
5. 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.
6. 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].
7. 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.
8. 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.
9. 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.
10. 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".
11. 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.
12. 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.
13. 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".

The parties

1. Mr Gaynor's proceedings in this Court join the Local Court of New South Wales, the President of the New South Wales Civil and Administrative Tribunal, the President of the Anti-Discrimination Board of New South Wales and Garry Burns as the four defendants. Each of these defendants has entered a submitting appearance. The Attorney General in and for the State of New South Wales is the only active contradictor to Mr Gaynor's prayers for relief, having intervened in response to a Notice of a Constitutional Matter issued on 13 November 2018 pursuant to s 78B of the Judiciary Act. That notice is in these terms: "1. The plaintiff gives notice that this proceeding involves a matter arising out of the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903. 2. Attached is a copy of the current pleadings being an amended summons filed 10 August 2018 in the Supreme Court of New South Wales. 3. The nature of the matter in respect of which the constitutional issues arise are whether the Local Court of NSW may exercise the diversity jurisdiction of the High Court when its jurisdiction under Part 3A of the CAT Act depends upon the referral of the matter by NCAT to it, or by the ABD to it for referral. 4. There is a further issue as to the extent of the jurisdiction and power of the NSW court or tribunal issuing the initiating process and subsequent service thereof in Queensland. 5. The facts which give rise to the constitutional issue are that the plaintiff and the fourth defendant reside in different states and the jurisdiction being conferred on the Local Court under the AD Act and the CAT Act is jurisdiction which depends on the diversity jurisdiction of the High Court."
2. In the events that occurred during the hearing of these proceedings, Mr Gaynor applied for leave to issue a revised s 78B notice raising further constitutional matters. This is dealt with later in these reasons.

Mr Gaynor's contentions

1. The written submissions filed by the Attorney General conveniently identify four central propositions apparently advanced by Mr Gaynor. They are as follows: 1. That the Local Court cannot validly exercise a jurisdiction if the existence of that jurisdiction is conditioned upon an application or appeal being "first made with the Tribunal" which the Tribunal itself had no jurisdiction to determine. 2. That it would be "impossible" for the Local Court to be satisfied of the matter in s 34B(2)(c) of the NCAT Act, concerned with whether the Tribunal would "otherwise" have jurisdiction to determine the application, in the circumstances of this particular case. 3. That it would be "impossible" for the Local Court to be satisfied of the matter in s 34B(2)(d) of the NCAT Act, concerned with proceedings beyond the Local Court's jurisdictional limit, in the circumstances of this particular case. 4. That Part 3A of the NCAT Act offends the "Kable principle".
2. However, Mr Gaynor also raises the issue of whether certain provisions of the Anti-Discrimination Act operate so as to deprive the Local Court of any jurisdiction to hear the proceedings. That argument relies on s 49ZS and s 49ZT of that Act and raises the issue of whether the matters complained of by Mr Burns involve or are concerned with a public act in this State.

Consideration

1. Mr Gaynor's central contention is that for well-established and accepted constitutional reasons, the Tribunal cannot exercise judicial power in what are referred to as diversity matters, involving disputes between residents of different States. That being so, any jurisdiction apparently conferred upon the Local Court that is, or that appears to be, conditioned upon an application first being made to the Tribunal, is itself invalid. In other words, to the extent that the jurisdiction of the Local Court in such matters is based upon or triggered by an application first being made to the Tribunal, which has no jurisdiction to hear such matters, the scheme under s 34B fails at the threshold.
2. Mr Gaynor's written submissions put it in these terms: "If, as the High Court held in favour of [Mr Gaynor], that NCAT had no jurisdiction to hear Mr Burns' numerous complaints against him, then NCAT has no jurisdiction to receive or process any complaints by Mr Burns, including by referring them following consideration by it or its Appeal panel to the LCNSW under Part 3A. The stream cannot rise higher than the source."
3. In this respect, Mr Gaynor's submissions are replete with references to Part 3A of the NCAT Act authorising the Tribunal to "refer" matters to the Local Court or purporting to confer diversity jurisdiction on the Tribunal "via" the Local Court. Inherent in these references is an assumption that the jurisdiction conferred upon or exercised by the Local Court in such matters is one that must necessarily have first existed in the Tribunal itself, and which the Local Court picks up by operation of s 34B.
4. However, as the Attorney General's submissions emphasise, Part 3A of the NCAT Act does not purport to authorise the Tribunal to "refer" complaints to the Local Court or to confer diversity jurisdiction upon the Tribunal. On the contrary, Part 3A conditions the conferral of diversity jurisdiction upon the Local Court on specified events that merely happen to involve the Tribunal. Those "conditions" are specified in s 34B(2) of the NCAT Act.
5. Mr Gaynor argues that because the Tribunal cannot itself be conferred with jurisdiction in diversity matters, no "lawful application" to the Tribunal can be made in relation to any such matter. In those circumstances, so this argument goes, an application complying with s 34B(2)(a) would be devoid of relevant utility if it related to a matter to which s 34B(2)(b) applied.
6. As the Attorney General points out, that argument proceeds upon the assumption that a thing done in the purported but invalid exercise of a power conferred by law is incapable of having any legal consequences. In this respect I was referred to the judgment of Gageler J in New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 as follows: "[52] Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a 'nullity' in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid. [53] One of the ways in which the existence in fact of a purported but invalid law, or the existence in fact of a thing done invalidly in the purported exercise of a power conferred by law, might lead to the taking of action in fact is that the purported law or other thing might be relied on to found an action in a court which results in the making of a judicial order…".
7. The Attorney General submitted that, reading s 34B(2)(a) and (b) together, it is plain that parliament intended to attribute legal consequences to certain applications to the Tribunal even though the Tribunal had no jurisdiction to determine them. In my opinion, that must be correct. As the Attorney General's submissions emphasise, Part 3A of the NCAT Act was, according to the Explanatory Memorandum for the Bill, inserted specifically to address the consequences of the Court of Appeal decision in Burns v Corbett; Gaynor v Burns. It would in such circumstances, according to this submission, be a strange result if Part 3A did not confer jurisdiction upon authorised courts, such as the Local Court, "in relation to the very class of matters that the Parliament intended to address by inserting Part 3A into the NCAT Act".
8. Mr Gaynor's analogy of the stream rising higher than the source is inapt in the present circumstances. It assumes for its relevance that the Tribunal must have its own jurisdiction in a particular matter before a cognate jurisdiction can rise in the Local Court. However, the Local Court is not exercising the, or a, jurisdiction that has been inappropriately or, in constitutional terms, impermissibly conferred upon it. The stream of the Local Court's diversity jurisdiction rises in that Court when the s 34B(2) conditions, which say nothing about the jurisdiction of the Tribunal, have been satisfied. I note that Mr Gaynor does not contend that the bare factum of compliance with s 34B(2) is in doubt.
9. The Attorney General contended, and I accept, that Mr Gaynor's central contention should be rejected. There is no constitutional or other impediment to the conferral of jurisdiction being made conditional on the making of an application to the Tribunal as a matter of simple fact in circumstances where the Tribunal did not have its own jurisdiction to determine the application.
10. Mr Gaynor next argues that it would be "impossible" for the Local Court to be satisfied that it would otherwise have had original jurisdiction or external appellate jurisdiction to determine an application or appeal, as required by s 34B(2)(c) of the NCAT Act. Mr Gaynor's submissions put the matter as follows: "18 Further, NCAT has no jurisdiction to deal with complaints against residents of other states, rendering it impossible for the LCNSW to be satisfied of the condition in s 34B(2)(c) to be met".
11. In my opinion, that contention must be rejected. The wording of the provision is plain enough. It purports to refer to applications or appeals in respect of which the Tribunal would have had original or external appellate jurisdiction to hear a matter apart from or but for the fact that the application or appeal would involve the exercise of federal diversity jurisdiction.
12. The conferral of jurisdiction is concerned with the investment of authority for a court to adjudicate: see, by way of analogy, Kiefel CJ in Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [7]. It is not concerned with the merits of the proceeding, except to the extent that the absence of jurisdiction might in a particular case be determinative of the outcome. It is hardly controversial, especially having regard to the decision of the High Court involving Mr Gaynor and Mr Burns, that the Tribunal has no jurisdiction to deal with complaints arising against residents of different states. Mr Gaynor's submission appears to suggest that the Tribunal would be somehow unable to identify a matter as one involving a cross-border complaint. I am unable to understand that submission. If the point were taken by a respondent to a complaint, the outcome would be obvious. If the point were not taken, it would presumably be irrelevant.
13. It may well be that Mr Gaynor is able successfully to argue that he has a good defence on the merits to any proceedings in respect of which the Local Court may decide to grant Mr Burns leave to commence. For example, Mr Gaynor would presumably wish to argue that leave to commence proceedings should not be granted to Mr Burns because the conduct in which Mr Gaynor is alleged to have engaged has an insufficient territorial connection to or nexus with New South Wales so as to amount to a contravention of the Anti-Discrimination Act. That would, as the Attorney General notes, be an argument to be determined in the Local Court in the exercise of its jurisdiction under Part 3A of the NCAT Act and s 30(1)(b2) of the Local Court Act 2007.
14. Mr Gaynor's next argument is that it would be "impossible" for the Local Court to be satisfied of the matter in s 34B(2)(d) of the NCAT Act. Mr Gaynor contends that Mr Burns' complaints are "beyond the jurisdictional limit" of the Local Court.
15. Although Mr Gaynor's written submissions leave some room for doubt about whether or not this contention is based upon a misunderstanding of the phrase "jurisdictional limit", his oral submissions before me removed that doubt.
16. Mr Gaynor's written submission is as follows: "20 Further, the complaints against the plaintiff are beyond the jurisdictional limit of the LCNSW, rendering it impossible to satisfy the conditions of s 34B(2)(d) of the NCAT Act."
17. "Jurisdictional limit" is defined in s 34A to mean "in relation to an authorised court…the jurisdictional limit of the court within the meaning of the Civil Procedure Act 2005." Section 3(1) of that Act provides that "jurisdictional limit" means: "(a) in relation to the District Court, the jurisdictional limit of that Court within the meaning of the District Court Act 1973 , and (b) in relation to the Local Court sitting in its General Division, the jurisdictional limit of the Local Court when sitting in that Division within the meaning of the Local Court Act 2007 , and (c) in relation to the Local Court sitting in its Small Claims Division, the jurisdictional limit of the Local Court when sitting in that Division within the meaning of the Local Court Act 2007."
18. Section 29 of the Local Court Act provides as follows: "29 Jurisdictional limit of Court (1) For the purposes of this Part, the 'jurisdictional limit' of the Court is: (a) $100,000, when sitting in its General Division, and (b) $20,000, when sitting in its Small Claims Division. (2) However, the jurisdictional limit of the Court, when sitting in its General Division, in relation to a claim for damages arising from personal injury or death is $60,000."
19. Mr Gaynor framed his arguments in support of this contention upon the basis that Mr Burns' complaints were in respect of a claim for a monetary sum exceeding $100,000, being the jurisdictional limit of the General Division of the Local Court where proceedings of the kind contemplated by Part 3A of the NCAT Act are heard. That contention was elaborated upon in his submissions in reply, to the following effect: "14. Section 9 of the Local Court Act states that the NSWLC has 'Civil Jurisdiction' conferred on it by Part 3 of that Act. Section 10 divides the LCNSW into two parts when exercising 'Civil Jurisdiction': General Division and Small Claims Division. Part 3 is titled 'Civil Jurisdiction' and section 29 limits the jurisdiction of the NSWLC to $100,000 when sitting in its General Division. Section 30(b2) then states that the NSWLC has jurisdiction in its General Division to hear and determine matters under Part 3A of the NCAT Act. Section 34 is in the same division (Division 2) as section 30 and both fall under Part 3 - Civil Jurisdiction as already indicated and operates accordingly. On the proper construction of the applicable law, the LCNSW has no jurisdiction to grant leave to Mr Burns' several existing or threatened complaints or determine such complaints. 15. It follows also that a condition of LCNSW's jurisdiction under Part 3A is not fulfilled not only because the elements in section 34B(2)(b)-(d) are not satisfied, but also because the Court itself is not a suitable receptacle of Chapter III jurisdiction under Judiciary Act 1903 section 39(2): see especially the words in that subsection 'within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise'. 16. Similarly in reply to AGS [60-66], [not a constitutional point], the Attorney-General accepts that the applicable monetary limit on jurisdiction in LCNSW is for a 'general claim' in LCNSW ie not in excess of $100,000. However one of Mr Burns' three claims in LCNSW [although because of the absence of the LCNSW files it is not possible to say which] exceeds that because the claim includes more than one complaint each of which leads to a possible verdict in excess of $100,000, ie a total of $200,000 well in excess of the Local Court's jurisdiction. 17. It follows that a condition of LCNSW's jurisdiction under Part 3A is not fulfilled because section 34B(2)(b)-(d) are not satisfied. That being the case all of the further actions before the LCNSW should be stayed on administrative law grounds and the further threatened actions prohibited by an order of prohibition of this Court."
20. Both in his original submissions and in his reply submissions, Mr Gaynor suggests the existence of some relevant link between his "jurisdictional limit" argument and an argument based upon s 39(2) of the Judiciary Act, which is relevantly as follows: "The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions…"
21. The transcript of the proceedings before me also contains the following interchange between me and counsel for Mr Gaynor on this point: "HIS HONOUR: Jurisdictional limit is defined in the Civil and Administrative Tribunal Act in relation to an authorised Court to mean the jurisdictional limit of the Court within the meaning of the Civil Procedure Act. I think you and I, Mr King, came to the Bar within a year of each other in the 70s and jurisdictional limit then - and for all I know - has continued to mean the amount you can claim in a court in monetary terms. The Civil Procedure Act defines it that way in relation to the Local Court, does it not? KING: It does, yes. HIS HONOUR: So how should I read jurisdictional limit in 34B(2)(d) to meaning anything other than the monetary amount that might disqualify a claim if it were exceeded? KING: We don't - we wouldn't dispute that. HIS HONOUR: Well, if you don't dispute it, sorry, then is the 34B(2)(d) point not pressed? In other words, not maintained as a matter that is of any relevance to your argument? KING: Well, it is relevant, your Honour, because those words 'substituted proceedings' in the way that I have submitted are a very helpful way of understanding the way that the section operates. But with respect to the specific item or integer (d), the answer is no; but we still submit that the section 39(2) point in relation to section 34 of the Local Court Act remains a valid point because if there is no jurisdiction in the District Court under section 34, then the Court cannot and would not grant leave to proceed. HIS HONOUR: I understand that, but why isn't that a question for the Downing Centre or wheresoever it is determined that the application should be heard? KING: Because once it appears to this Court that an inferior Court is about to exercise jurisdiction which it has no power to exercise, then this Court should intervene."
22. For my part I was unable to follow the argument that anything in s 39(2) of the Judiciary Act is somehow supportive of the argument that Mr Gaynor was attempting to promote with respect to the jurisdictional limit of the Local Court. It is simply not correct to say that it would be "impossible" for the Local Court to determine whether the substituted proceedings on an application or on appeal would be within the jurisdictional limit of that court. The very fact that Mr Gaynor's submissions make reference to the difficulty associated with determining the issue because of the absence of the Local Court files in each matter rather supports the proposition that access to these files, which the Local Court would undoubtedly have, would make assessment of the matter a fundamentally simple exercise. The answer to Mr Gaynor's argument about s 34B(2)(d) seems to me to be so obvious and unarguable that I am left with the feeling that I cannot properly have understood the way in which Mr King has adumbrated Mr Gaynor's point on this issue.
23. Similarly, I also cannot follow Mr Gaynor's argument that suggests some relevant interaction between the operation of s 34(2)(d) of the NCAT Act and s 39(2) of the Judiciary Act. If there is said to be some critical and relevant connection between the words "within the limits of their several jurisdictions" to be found in s 39(2) and the reference to "the jurisdictional limit of the court" to be found in s 34B(2)(d), I cannot see it and Mr King has not managed to explain it to me. I confess that I simply do not understand the argument that Mr Gaynor wishes to put.
24. Finally, Mr Gaynor contended that Part 3A of the NCAT Act offended the Kable principle. Paragraph 35 of his written submissions is as follows: "35 A further issue is that the modifications imposed by s 34B(4) [sic, s 34C(4)] of the NCAT Act have the effect of causing the NSWLC and the NSWDC to act in some ways like NCAT, particularly in regards to the NSWLC and its powers in relation to evidence, legal representation, parties, fees and costs. That being so the legislature has sought to avoid the effect of the High Court's decision, and Chapter III: debasing a court into an administrative tribunal is not permissible in the proper exercise even of State judicial power: Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51."
25. As the High Court explained in AG (NT) v Emmerson (2014) 307 ALR 174; [2014] HCA 13 at [40]: "The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid."
26. Mr Gaynor's brief written submissions on this topic were elaborated upon by Mr King in oral argument as follows: "Our third point is that Kable applies. Kable was a case involving the end of the process. Mr Kable - your Honour may recall him standing over outside of parliament - he was kept in prison because it was feared that he may undertake, threaten acts against members of the community, but without any trial, without any proper judicial exercise of the power under the criminal justice process held laws invalid, and that was because of the necessity for state laws, as part of the federal judicial compact in Chapter III, irrespective of the so called autochthonous expedient to conform to the requirement of integrity of the system, and that didn't. Kable was at the end of the process, this is at the start of the process. What you have here is a federal diversity jurisdiction being exercised under Part 3A of the NCAT Act initially through two filters that are executive in character, not judicial in character, and hence a breach of the Kable principle. Not at the end, but at the start."
27. As the Attorney General's submissions emphasise, Mr Gaynor has not identified the way in which it is said that s 34C(4) of the NCAT Act impairs the institutional integrity of the Local Court. Mr Gaynor has not identified the "defining characteristics" which it is said are impaired by that or any other provision of Part 3A of the NCAT Act.
28. Although I should once again hasten to acknowledge that the fault may be entirely mine, I am unable to identify how Mr Gaynor's submissions give the operation or application of the so-called Kable principle any traction in these proceedings.
29. Mr Gaynor's several propositions were also said to be supported by a fundamental anterior point stemming from the terms of two provisions of the Anti-Discrimination Act. Section 49ZS and s 49ZT provide respectively as follows: "49ZS Definition In this Division: "public act" includes: (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. 49ZT Homosexual vilification unlawful (1) 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. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter."
30. Mr King put the argument thus in oral submissions: "Now, our first point is this, that as a matter of construction of 34B, that the no public, the evidence in the present matter discloses there has been no public Act alleged by or capable of being found in respect of the public Act in New South Wales within the meaning of s 49ZS and 49ZT of the Anti Discrimination Act. If that is the case, then there is no foundation for these cases proceeding before the Local Court. There has been a decision in our favour on this point. If your Honour goes to the decision of Judge Patten sitting in the NCAT [Gaynor v Burns [2015] NSWCATAD 211]. … So if I can take your Honour back to 34B(2)(c): 'The Tribunal must otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application on appeal.' All of these matters are, were and properly could have been struck out under that provision because there is no public Act in New South Wales; and our second point is founded upon the Victorian provision. If your Honour goes to s 49ZS, the definition of 'public Act', unlike the Victorian Act, does not specify any conduct outside New South Wales as a public Act. Reading the Act strictly in accordance with its terms, which should occur because we are dealing here with the exercise of extraterritorial power, which is not assumed unless it is expressly provided for, as it is in the Victorian law, any public Act in Queensland is not the subject of the legislation. And our third point is that if that's wrong, then s 49ZS is inoperative, to use the word of Leeming JA in the Court of Appeal in Corbett v Burns and Gaynor v Burns, because it would have the consequence of invalidly extending the State's extraterritorial power in conflict with the Queensland provision, which is a different provision having different operation, different effect, so that it couldn't possibly be right in a federation that a man or a woman who carries out legitimate conduct in his or her own State under laws on the same topic, that is to say, anti-discrimination laws with respect to, amongst other things, vilification could somehow or other in a federation be liable under the laws of another State with respect to the same subject matter."
31. Although Mr Gaynor argued strenuously to the contrary, it does not seem to me that these provisions invalidate the proceedings currently stayed in the Local Court at some threshold level so that they are vulnerable to the challenges that he makes. The question of whether or not the complaints made by Mr Burns are based upon some public act in this State will presumably be a factual matter that arises for consideration in the Local Court. It is not a matter going to the jurisdiction of the Local Court to entertain or to adjudicate upon the issues in the first place.
32. Mr Gaynor relied upon what was said by Principal Member Patten in Burns v Gaynor [2015] NSWCATAD 211 at [17] as follows: "In my opinion there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns' argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion such a circumstance is beyond the reach of the NSW Parliament."
33. Mr Patten's decision on this issue would not prevent Mr Burns from commencing his several proceedings in the Local Court, where the public act question would undoubtedly arise again for consideration concerning the particular facts of the cases concerned. Neither the previous decision of the Tribunal in different proceedings nor the particular provisions of the Anti-Discrimination Act upon which Mr Gaynor relies operates to invalidate the subject Local Court proceedings on a jurisdictional or any other basis.
34. I should also observe that Mr Gaynor took exception to the fact that the Attorney General's submissions dealt in some respects with matters going beyond the issues that were raised by the s 78B notice to which his intervention in these proceedings was related. The burden of that submission was that the Attorney General was not a proper contradictor to the administrative law arguments that Mr Gaynor wished to promote in support of his prayers for relief in the amended summons. Even if that were correct, the identification of these matters in the Attorney General's written submissions does not deprive them of force or mean that they are not important if they are such that Mr Gaynor must otherwise confront them in these proceedings. Moreover, the somewhat discursive and unstructured form of Mr Gaynor's original written submissions and submissions in reply meant that I was grateful for the assistance with which the Attorney General's submissions on non-constitutional matters were able to provide me. The fact that Mr Gaynor has actually furnished me with extensive written submissions in reply, dealing with all of the points raised against him, in my view detracts significantly from the force of this complaint in any event.

Further matters

1. During the course of Mr King's submissions, he raised some issues potentially involving additional and different constitutional matters that had not been notified in his original s 78B notice. In the events that occurred, on 16 May 2019, I granted Mr Gaynor leave to file a further amended summons and to file and serve on or before 23 May 2019 an amended notice under s 78B of the Judiciary Act if he proposed to continue to agitate the matters raised. Mr Gaynor thereafter filed a Revised Notice of Constitutional Matter on 28 May 2019. It is in the following relevant terms: "1. The plaintiff gives a revised notice that this proceeding involves a matter arising out of the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903. The initial notice was filed 13 November 2018, a copy of which is attached and marked "A". 2. Attached and marked "B" is a copy of the Amended Summons dated 10 August 2018 further amended by leave on 16 May 2019 in the Supreme Court of New South Wales. 3. The nature of the matters in respect of which the constitutional issues arise are: (a) The Local Court of NSW [the first defendant] is called on to exercise the diversity federal jurisdiction of the High Court of Australia under Constitution sections 75(iv) and/or 76(iv) when that jurisdiction depends upon the filing of process in the ADB and/or NCAT [the 2nd and 3rd defendants] neither of which is a court and which may exercise decision-making powers and take other steps antecedent to the Local Court's jurisdiction as an exercise of the executive power of the State; (b) The Local Court of NSW [the 1st defendant] is not a 'court' within the meaning of Judiciary Act 1903 s 39(2) because having regard to Local Court Act s 35 and Civil and Administrative Tribunal Act 2013 Part 3A the Local Court is incapable of exercising federal diversity jurisdiction with respect to the matters alleged in the Local Court Summons, and as a consequence the said statutes are inconsistent with a law of the Commonwealth and void to confer any jurisdiction on the 1st Defendant with respect to the matters alleged in the Local Court Summons by operation of Constitution s 109; (c) CAT Act Part 3A is inoperative because the Parliament of NSW lacks extra-territorial power to make Anti-Discrimination Act 1977 sections 49ZS and 49ZT upon which the operation of Civil and Administrative Tribunal Act 2013 Part 3A depends with respect to any of the Local Court Summons' causes of action where each arises in whole or in part in Queensland which has similar laws with respect to the same subject-matter in Anti-Discrimination Act 1991; (d) Further or alternatively to (b) and (c) CAT Act Part 3A is void because with respect to the subject matter of discrimination against homosexuals it does not give full faith and credit to the laws of Queensland in particular Anti-Discrimination Act 1991 under Constitution s 118 and/or is in breach of the federal implication in Constitution Chapter III namely that the exercise of legislative power by one State ie NSW shall not impair the exercise of legislative power relating to the same subject-matter claimed under the laws of Queensland as contemplated by Constitution s 76(iv) and the Constitution read as a whole; (e) CAT Act Part 3A is void because it impairs the constitutional implication in Chapter III of the Constitution upheld in Burns v Corbett [2018] HCA 15; 92 ALJR 423 in the following circumstances: (i) Where an element of each federal diversity matter as defined under Constitution Chapter III, and in particular with respect to the element of standing of the 4th Defendant to sue before the 1st, 2nd and 3rd Defendants, is that the matter commences before the ADB [the 2nd Defendant], is then transferred to NCAT [the 3rd Defendant], and is filed as a substituted proceeding in the 1st Defendant, in compliance with Part 3A section 34B(1); (ii) Where a further element of each federal diversity matter depends upon the exercise of jurisdiction by NCAT [the 3rd Defendant] which is an executive State entity including with respect to internal appeals before NCAT, after transfer of the matter to NCAT by the 2nd Defendant under Anti-Discrimination Act 1977 by the President of the ADB, in conformity with Part 3A section 34B(2)(a); (iii) Where the exercise of the judicial power of the Commonwealth by the 1st Defendant with respect to elements of each federal diversity matter is not exclusive but may and in the respects set out in [i] and [ii] must also be exercised by the 2nd and 3rd Defendant [NCAT] in compliance with section 34B(2)(b) and (c) and other provisions of Part 3A. (f) That each 'matter' in each of Mr Burns' Summons against the Plaintiff is a hybrid Chapter III matter involving both judicial and executive elements and functions in breach of the principle in Kable v Director of Public Prosecutions (NSW) [1996]HCA 24; 189 CLR 51. 4. The facts which give rise to the constitutional issue are: (a) that the plaintiff and the 4th defendant reside in different states and the jurisdiction being conferred on the Local Court is jurisdiction which depends on the federal diversity jurisdiction of the High Court; (b) that the cause of action in each complaint brought and maintained by the Fourth Defendant in the 1st and/or 2nd and/or 3rd defendants, including the Summons the subject of this proceeding filed in the Local Court after the decision of the High Court of Australia in Burns v Corbett and/or the Court of Appeal is a federal diversity matter; (c) Queensland and other States including Victoria have made laws dealing with the same subject-matter as Anti-Discrimination Act 1977 with different tests and different remedies, such that the Plaintiff is being placed at risk of inconsistent decisions and/or at double jeopardy under laws of different States in respect of the subject-matter of each complaint brought and maintained by the 4th Defendant in the 1st and/or 2nd and/or 3rd Defendants, including the Summons the subject of this proceeding filed in the Local Court after the decision of the High Court of Australia in Burns v Corbett and the Court of Appeal and the threatened further Summons in that Court as specified in the Further Amended Summons herein."
2. In summary, it appears that Mr Gaynor's further amended summons and revised notice for the purposes of s 78B of the Judiciary Act seek to raise the following additional arguments to those expressly raised by his original notice under s 78B: 1. that the Local Court of New South Wales is "incapable" of exercising diversity jurisdiction in relation to the subject matter of the Local Court proceedings because the Local Court's "area jurisdiction" does not include matters arising outside NSW; 2. that the parliament of New South Wales "lacks extra-territorial power"; 3. that Part 3A of the NCAT Act is void by reason of s 118 of the Constitution and/or because it breaches a supposed implication in the Constitution to the effect that the exercise of legislative power in one State cannot "impair" the exercise of legislative power in another; 4. that Part 3A "impairs" the constitutional implication discussed in Burns v Corbett (2018) 92 ALJR 423 to the effect that adjudicative authority in respect of the matters listed in ss 75 and 76 of the Commonwealth Constitution can be exercised only as Chapter III contemplates and not otherwise; 5. that Part 3A offends the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 because it purports to authorise the creation of a "hybrid Chapter III matter involving judicial and executive functions".
3. With respect to the first point, Mr Gaynor submitted that the Local Court of New South Wales is not a Chapter III court within the meaning of s 39(2) of the Judiciary Act because its area jurisdiction does not include matters arising outside the State of NSW against residents of Queensland and accordingly Part 3A is invalid, to the extent that it confers jurisdiction on that court, by operation of s 109 of the Constitution.
4. The Attorney General contended that Mr Gaynor's submission misunderstands the interaction between Chapter III of the Commonwealth Constitution, s 39 of the Judiciary Act and provisions of state law such as Part 3A of the NCAT Act and Part 3 of the Local Court Act.
5. The Attorney General submitted that the federal Parliament is empowered by s 77 of the Constitution to define the federal jurisdiction of state and federal courts other than the High Court. Section 77 relevantly provides that: "With respect to any of the matters mentioned in the last two sections [which includes diversity matters under s 75(iv)] the [Commonwealth] Parliament may make laws: … (iii) investing any court of a State with federal jurisdiction."
6. Section 39(2) of the Judiciary Act is a law of the kind contemplated by s 77(iii) of the Commonwealth Constitution. It relevantly provides that: "The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which jurisdiction can be conferred on it except as provided in section 38, and subject to [certain] conditions and restrictions [that are not presently relevant]."
7. The Attorney General submitted that one of the classes of "matters in which the High Court has original jurisdiction" is a matter "between residents of different States" (diversity matters): see Constitution s 75(iv). Thus, the combined operation of s 77 of the Constitution and s 39(2) of the Judiciary Act is to invest the "several Courts of the States" such as the Local Court of New South Wales with jurisdiction in relation to diversity matters but only to the extent of the "the limits of [its] jurisdiction…whether such limits are as to locality, subject-matter, or otherwise."
8. According to the Attorney General's submissions, by way of example, the Local Court has jurisdiction to determine a claim for $50,000 in damages in relation to a civil assault committed in Sydney against a Sydney resident even if the perpetrator was a resident of Queensland. The Local Court would not, however, have jurisdiction to determine a matter arising from the same facts if $150,000 was claimed, or perhaps more correctly, would lack jurisdiction to the extent that the amount of a plaintiff's claim exceeded the jurisdictional limit. That is because such a matter would fall beyond the "jurisdictional limit" referred to in ss 29 and 30(1)(a) of the Local Court Act (with the result that s 39(2) of the Judiciary Act would not operate to vest the Local Court with jurisdiction in that matter because such an investiture would be beyond the "limits of [the Local Court's] jurisdiction"). Similarly, s 39(2) of the Judiciary Act operates to confer jurisdiction on the Local Court to determine matters arising under the Anti-Discrimination Act between residents of different States provided that such a matter falls "within the limits of [the Local Court's] jurisdiction."
9. There is no relevant "limit of [the Local Court's] jurisdiction" that would exclude the otherwise general conferral of jurisdiction on the Local Court to determine diversity matters. On the contrary, s 30(1)(b2) of the Local Court Act makes it clear that the Local Court has jurisdiction to determine so-called "substituted proceedings" within the meaning of Part 3A provided only that such proceedings fall within the Local Court's "jurisdictional limit" of $100,000. The Attorney General submitted that there is nothing in the material before me in any event to suggest that the Local Court proceedings involve a claim exceeding $100,000. The Attorney General submitted that I should therefore reject Mr Gaynor's suggestion that the Local Court is "incapable" of exercising federal jurisdiction in the Local Court proceedings.
10. I agree. With great respect, Mr Gaynor and his lawyers do appear to misunderstand the relationship between the limits of the Local Court's jurisdiction and its ability to exercise federal jurisdiction properly conferred. Although this point was agitated in the more recently added round of so-called constitutional points, it is in reality no more or less than a reprise of a similar argument with which I have already dealt. The result should be no different.
11. So far as the operation of s 34 of the Local Court Act is concerned, I am not in a position to conclude that a material part of Mr Burns' cause of action in the Local Court did not occur in New South Wales. The evidence does not disclose precisely what Mr Burns' complaints are or in what way those complaints are said to be connected with New South Wales. In those circumstances, I am not able to conclude that the Local Court proceedings fall beyond the territorial jurisdiction of the Local Court as extended by s 34 of the Local Court Act.
12. However, as the Attorney General points out, that does not mean Mr Gaynor could not argue that Mr Burns' complaints had an insufficient nexus to the State of New South Wales with the result that Mr Gaynor's conduct, if proved, would not amount to an offence under the Anti-Discrimination Act. That would be and remains a matter for determination by the Local Court.
13. With respect to Mr Gaynor's second point, that the New South Wales parliament lacks extra-territorial power, the Attorney General reiterated the earlier submission that it is well-established that the parliaments of States have power to make laws that have extraterritorial operation even if there is only a "remote and general connexion between the subject-matter of the legislation and the State": Union Steamship Co v King (1988) 166 CLR 1; [1988] HCA 55 at 1. Mr Gaynor's second point is without merit.
14. With respect to his third point, Mr Gaynor submitted that Part 3A of the NCAT Act is void. By way of example, with respect to the subject matter of discrimination against homosexuals, he contended that Part 3A does not give full faith and credit to the laws of Queensland, in particular the Anti-Discrimination Act 1991 (Qld), under s 118 of the Constitution and/or is in breach of the federal implication in Chapter III of the Constitution. This is said to be because the exercise of legislative power by one state shall not impair the exercise of legislative power relating to the same subject-matter claimed under the laws of another state as contemplated by Constitution s 76(iv) and the Constitution read as a whole.
15. The Attorney General maintained that Mr Gaynor's submissions do not explain how it is said that Part 3A of the NCAT Act does not give full faith and credit to the laws of Queensland or how it is said that it "impairs" the exercise of legislative power by the parliament of Queensland. For example, it is not said that the Queensland Anti-Discrimination Act authorises conduct that is proscribed by the New South Wales Anti-Discrimination Act or that the New South Wales Act requires NCAT or a court hearing so-called substituted proceedings to ignore or otherwise not give full faith and credit to the Queensland Act.
16. In my opinion, Mr Gaynor's full faith and credit point is without merit. The Attorney General's concern, to the effect that Mr Gaynor's argument lacks tangible content or is not adequately explained, is not simply an irritating or persistent complaint. At its highest, Mr Gaynor's assertion that the New South Wales provision fails to give full faith and credit to the Queensland legislation rises no higher than a mere ipse dixit, depending for its force upon the bald assertion of its truth. My several attempts to identify Mr Gaynor's perceived iniquity have so far yielded no success.
17. In response to Mr Gaynor's fourth point, the Attorney General submitted that Part 3A of the NCAT Act does not "impair" the constitutional implication discussed in Burns v Corbett; Burns v Gaynor (2018) 82 ALJR 423; [2018] HCA 15. In that case, four members of the High Court concluded that the Commonwealth Constitution impliedly precludes the parliament of a state from investing a tribunal with adjudicative authority in relation to diversity matters where that tribunal is not one of the "courts of the States" referred to in s 77 of the Constitution. That implied preclusion is not offended or impaired by Part 3A of the NCAT Act.
18. As the Attorney General earlier submitted, Part 3A does not purport to confer adjudicative authority in relation to diversity matters on any person or body that is not a "court of the State". On the contrary, it operates to permit adjudicative authority in relation to certain diversity matters to be exercised by the Local Court and the District Court, which are "unquestionably" courts of the states for constitutional purposes.
19. Finally, in response to Mr Gaynor's "Kable" point, the Attorney General once again cited the comments of the High Court in AG (NT) v Emmerson at [40], which I have already set forth at [45] of these reasons.
20. As the Attorney General emphasised, contrary to Mr Gaynor's assumption, Kable does not support the proposition that non-judicial functions cannot be conferred on a court of a State. Kable is authority for the opposite proposition: that the New South Wales Constitution does not embody a strict separation of powers of the kind that applies under the Commonwealth Constitution.
21. The Attorney General also contended that Mr Gaynor's suggestion that Part 3A somehow operated to share adjudicative authority between NCAT and "authorised courts" was misconceived. Part 3A proceeds on the premise, consistently with the decision of the High Court in Burns v Corbett, that NCAT does not have and cannot have authority to determine an application or appeal that would involve an exercise of federal jurisdiction but provides a regime pursuant to which such authority may instead be exercised by one of two "courts of the States". Nothing in that regime purports to permit or require adjudicative authority being "shared" between those courts and NCAT.
22. Instead, Part 3A operates upon the premise that if adjudicative authority is to be exercised in a matter that would involve an exercise of federal jurisdiction, in which NCAT would otherwise have had jurisdiction, that authority must be exercised by the Local Court or the District Court.

Conclusions

1. 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.
2. It follows in these circumstances that Mr Gaynor's further amended summons should be dismissed.

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