The Constitutional Issue
18 Grounds 1-4 were -
"1. His Honour Maguire J, erred in declining to stay the proceedings, to enable the issuing of notices pursuant to s 78B of the Judiciary Act (Cth) and the passage of reasonable time thereafter, before determining the issue of whether there existed a conflict between the substantive law of New South Wales and South Australia as regards the ambit of the appellant's rights in these proceedings (J2[1]-[4]).
2. The proceedings below were commenced in the Dust Diseases Tribunal of New South Wales against two defendants, being the now appellant and BI (Contracting) Pty Ltd (the second defendant). The proceedings were listed for hearing on 16 December 2002. On 12 December 2002, two working days prior to the commencement of the hearing the plaintiff and now respondent discontinued the proceedings against the second defendant. That left as the only parties to the proceedings, parties who were resident and domiciled in South Australia. The appellant had never carried on business in New South Wales. The alleged tort had been entirely committed in South Australia. The substantive law applicable to the case was that of South Australia. In these circumstances His Honour erred in failing to hold that by reason of s 118 of the Constitution the Dust Diseases Tribunal of New South Wales did not have jurisdiction to hear and determine the proceedings (and thereby invoke the operation of s 32 of the Dust Diseases Tribunal Act 1989 limiting rights of appeal only to questions of law) ("the Constitutional question"). (J2 at [1]-[4]; J3 at [3]).
3. His Honour erred in determining the Constitutional question by reference to, and application of, the decision of Johns J in McDonough v Stevedoring Industry Finance Committee (2000) NSWCCR 385, which decision concerned the question of whether s 25B of the Dust Diseases Tribunal Act 1989, infringed Chapter III of the Constitution or was otherwise a valid exercise of the legislative power of the New South Wales Legislature, and which did not consider s 118 of the Constitution in light of the restricted rights of appeal prescribed by s 32 of the Dust Diseases Tribunal Act 1989.
4. This ground of appeal concerns the trial judge's exercise of federal jurisdiction. Pursuant to s 78B of the Judiciary Act 1993 (Cth) notices must be issued to the Attorneys-General with respect to this question."
19 The purported ground 4 is not a ground of appeal. Notices had been issued to the Attorneys General for the purposes of the appeal. The Attorney General for New South Wales appeared and made submissions on the constitutional issue, supporting the respondent. None of the other Attorneys General intervened or sought removal of the proceedings to the High Court.
20 Ground 1 does not itself proffer a constitutional issue; it is consequential on there being a constitutional issue. Grounds 2 and 3 go together, and proffer the constitutional issue. It is convenient first to consider grounds 2 and 3, the nub of which is that Maguire J erred in failing to hold that the Tribunal did not have jurisdiction to hear and determine the proceedings.
21 It is necessary to appreciate the evolution of the constitutional issue.
22 A "constitutional point" was asserted by the appellant in conjunction with its forum non conveniens application on 16 December 2002. Counsel for the appellant said -
"The constitutional point that we want to take, your Honour, is in the following terms, if I can summarise it. In circumstances where the proceedings are commenced in New South Wales that the parties to the action are domiciled in South Australia have not carried on business in New South Wales and where the alleged tort was entirely committed in South Australia, whether section 118 of the constitution requires the substantive law to be applied in the assessment of the defendant's liability to be that of New South Wales, that is invoking 25B and 25(3) of the Dust Diseases Tribunal Act rather than the substantive law of South Australia.
As your Honour would be aware under 78B of the Judiciary Act that does not mean that your Honour is necessarily embargoed from continuing with the matter per se but what it does mean that your Honour is duty bound, in our respectful submission, not to proceed to receive evidence that touches on that constitutional issue until such time as a reasonable opportunity has been provided for notices to be given to the Attorney General; that is your Honour could continue if my learned friend decides to take this course, to receive the plaintiff's evidence, your Honour could continue to receive evidence in the nature of documentary tenders that arise in these proceedings, but once we jump over the line in 25B and 25(3) material that is the point where the proceedings will have difficulty in continuing."
23 This did not challenge the Tribunal's jurisdiction over the appellant or its jurisdiction to hear and determine the proceedings. On the contrary, the appellant accepted that the Tribunal had jurisdiction but said that, for a constitutional reason, those aspects of the Tribunal's exercise of jurisdiction involving reception of evidence previously given and relitigation of general issues previously determined were unavailable. The constitutional point fell away when counsel for the respondent effectively disclaimed reliance on s 25B and s 25(3) of the Act; in fact they were not relied on.
24 The next form of the constitutional issue was at the time of the s 78B application. His Honour was not asked to hold that the Tribunal did not have jurisdiction to hear and determine the proceedings, and the notation of "J2 at [1]-[4]" part of ground 2 is misdirected. The submissions at that time put forward as the issue whether the parties had the limited right of appeal in s 32 of the Act or a full right of appeal said to be available under South Australian law. Counsel for the appellant said that the question the High Court should be asked was "whether the parties to this action have an unvetted [sic: unfettered] right of appeal from a judgment of this tribunal". He submitted that "the limited right of appeal is inconsistent with South Australian law and a question arises about that under section 118 [of the Constitution]".. After much discussion counsel said, "The defendant wants to know whether this trial is being conducted with a limited right of appeal in the Dust Diseases Tribunal Act or the rights that it would have in South Australia". What was sought was that there should be a stay of the proceedings by reason of that issue.
25 In the course of counsel's submissions he said at one point, "The matter unfortunately arising under the Constitution is the whole of the trial your Honour. The court can [sic: ?can not] hear the case because any appeal rights from it will be inconsistent with South Australian law". If this was intended to raise a challenge to the Tribunal's jurisdiction, it was inadequate. As will be seen from his Honour's reasons on the s 78B application, to which I will come when considering ground 1, no such challenge was perceived; nor did ground 1 treat the constitutional issue as challenging the Tribunal's jurisdiction to hear and determine the proceedings.
26 The third form of the constitutional issue was raised in the appellant's written submissions provided to Maguire J at the conclusion of the evidence on 20 December 2002. It was a rather different constitutional issue, and one which also took an extra step to jurisdiction. The evolution to a jurisdictional submission was very late.
27 The constitutional issue then raised was -
"In circumstances where the proceedings are commenced in New South Wales the parties to the action domicile in South Australia, have not carried on business in New South Wales and where the alleged tort was entirely committed in South Australia, whether s 118 of the Constitution requires the substantive law to be applied to the proceedings to be that of New South Wales (thereby invoking the operation of s 32 of the Dust Diseases Tribunal Act , 1989 (NSW) and limiting rights of appeal only to questions of law) rather than that of South Australia pursuant to which rights of appeal on all grounds exist, and if so, whether this Tribunal has jurisdiction to determine the action ?" (emphasis added)
28 After submissions similar to those presented to this Court, the written submissions relevantly concluded -
"[15] In the circumstances, it is submitted, that this Tribunal should determine that by reason of the imposition of the fetter on the parties appellant rights by operation of s 32 of the Dust Diseases Tribunal Act , 1989 (NSW), and in circumstances where there is no nexus in terms of parties or action to New South Wales, this Tribunal lacks jurisdiction to determine the rights of the parties having regard to those constraints in its enabling legislation, which provisions in the circumstances of this case are contrary to s 118 of the Constitution ."
29 Maguire J's reasons on this constitutional issue in his judgment of 20 December 2002 were brief. His Honour said -
"3. This point was taken in written submissions delivered to my Chambers after 11am today, the fifth day of the trial. The point could and should have been taken long ago. Reference was made to what was said to be a constitutional point within the first hour of the trial last Monday in Adelaide. I understood that Mr Miller said at the end of the discussion was [sic] no such point would be taken if the plaintiff did not introduce evidence pursuant to s 25(3) nor s 25B of the Dust Diseases Tribunal Act. The plaintiff has not. A rereading this afternoon of Monday's transcript suggests that there might be some ambiguity in what Mr Miller than said. I will not pause to discuss that; the point is now taken. It amounts to the fourth attempt to bring this trial undone. It must be determined, no matter the hurry involved. In the limited time available I have read the judgment of his Honour Judge Johns in McDonohue v Stevedoring Industry Finance Committee 2000 NSWCCR 385. It seems to me that his Honour's reasoning on the point before him in that case applies with equal force to the point taken here. The trial will proceed."
30 Under the heading of estoppel by record, the respondent submitted that in refusing the application on the question of jurisdiction on 13 December 2002 this Court had held that the Tribunal had jurisdiction over the appellant, and that the appellant (and the respondent and the Tribunal) were "bound" by that decision. It was common ground that the constitutional issue and the attendant argument going to jurisdiction had not been raised or put to this Court on the application. The respondent said that the decision was nonetheless binding on the appellant, citing Algama v Minister for Immigration and Cultural Affairs [2001] FCA 1884. The appellant said, without the benefit of authority, that the decision was "limited to the matters argued before the Court on [the] application".
31 Algama v Minister for Immigration and Cultural Affairs is concerned with the precedential value of decisions between other parties, not the effect of a decision between the instant parties. Neither the respondent nor the appellant otherwise addressed the availability or impact of res judicata estoppel. In the absence of proper submissions, the respondent's submission should not be decided. For reasons which will appear, it is not necessary to decide it.
32 The respondent also submitted that the appellant should not be permitted to argue the constitutional issue and challenge the Tribunal's jurisdiction on appeal, because "there had been ample prior opportunity to raise it and has [sic] failed to do so". The respondent cited Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131 and Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631. It is sufficient to say that, however late, the issue was raised and the Tribunal's jurisdiction was challenged, and the challenge was determined in the Tribunal. It is not a case of a new point for the first time on appeal.
33 I go therefore to the appellant's submissions presented to this Court.
34 The Tribunal was established as a specialist tribunal for hearing and determining proceedings on claims for damages for dust related conditions, with the same power to make decisions as the Supreme Court of New South Wales would have had in relation to similar proceedings. Perhaps because it was established as a specialist tribunal, appeal to this Court is restricted to appeal in point of law. The respondent's claim against the appellant could have been made in proceedings in the Supreme Court of South Australia or the District Court of South Australia. Appeal from a single judge of the Supreme Court of South Australia to the Full Court is not restricted to appeal in point of law, although in some circumstances appeal is not available or lies only by leave (Supreme Court Act 1935 (SA), s 50). Appeal from a judge of the District Court lies to the Supreme Court, in the case of an interlocutory judgment to a single judge and otherwise to the Full Court, and with a limited exception again is not restricted to appeal in point of law (District Court Act 1991 (SA), s 43).
35 It was common ground that, the appellant being a South Australian company and any tort or breach of statutory duty having been committed in South Australia, at least after the discontinuance as against BI the substantive law to be applied in any proceedings was the law of South Australia (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503).
36 Although they were not clearly distinguished, the appellant's submissions presented two arguments for the Tribunal lacking jurisdiction to hear and determine the proceedings. One was founded on s 118 of the Constitution. The other was founded on an implied constitutional limitation on the legislative competence of the New South Wales legislature.
37 The appellant's s 118 argument was as follows. Section 118 of the Constitution required that full faith and credit be given throughout the Commonwealth to "the laws, the public Acts and records, and the judicial proceedings of every State". Under the law of South Australia an appellant had a right of appeal on all grounds, that is, not confined to appeal in point of law. That was part of the substantive law, and had to be accorded full faith and credit. So far as there was conflict with s 32 of the Act, there was a "Constitutional impasse that can only be resolved by a finding that [the Tribunal] does not have jurisdiction in the circumstances of the present case".
38 The appellant submitted that what was involved was a question of choice of law, so that selection of the law of South Australia as the substantive law led to the dominance of South Australian appellate rights over the right of appeal in s 32 of the Act. The asserted dominance required categorising appellate rights as substantive rather than procedural, it being accepted that procedural matters were governed by the law of the forum (which the arguments took to be the law of the Tribunal's state, New South Wales, rather than the law of South Australia where Maguire J sat to take evidence). The step then to lack of jurisdiction turned on there being conflict between s 32 of the Act and the law of South Australia.
39 The appellant put forward as an alternative that, because of the conflict, the limitation of the appeal to this Court to appeal in point of law was invalid and a full right of appeal was available: I will come to that later.
40 In support of the argument, it was said that within Australia there should not be different outcomes in litigation according to where or in what court the litigation took place. Particular reliance was placed on the remarks of Kirby J in John Pfeiffer Pty Ltd v Rogerson at [129]-[130] -
"129. It may be reasonable to recognise the right of a litigant to choose different courts in the one nation by reason of their advantageous procedures, better facilities or greater expedition. However, it is not reasonable that such a choice, made unilaterally by the initiating party, should materially alter that party's substantive legal entitlements to the disadvantage of its opponents. If this could be done, the law would no longer provide a certain and predictable norm, neutrally applied as between the parties. Instead, it would afford a variable rule which particular parties could manipulate to their own advantage. Such a possibility would be obstructive to the integrity of a federal nation, the reasonable expectations of those living within it and the free mobility of people, goods and services within its borders upon the assumption that such movement would not give rise to a significant alteration of accrued legal rights.
130. In Australia, the consideration of the mobility of people, goods and services within a federation therefore encourages both the broadest possible access to the available courts within the unified Judicature of the nation and the adoption of a choice of law rule which helps to promote an identical outcome for the parties' substantive rights, wherever in that nation those rights fall to be determined by a court of law."
41 In my view, the appellant's argument fails properly to distinguish between jurisdiction and choice of law.
42 In John Pfeiffer Pty Ltd v Rogerson Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said at [25] -
"25. Questions of jurisdiction (in the sense of authority to decide) are better kept separate from questions of the applicable law. A court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable "long arm" provisions have been invoked. The assumption of jurisdiction raises no question as to the law to be applied in deciding the rights and duties of the parties. That last question might, in some cases, affect whether the court should decline to exercise its jurisdiction and stay the proceedings. But the authority of a court to decide a question of forum non conveniens and, also, to decide the substantive rights and duties of the parties comes from the fact of service of the process."
43 That passage was adopted by the same five justices in Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1 at [10]. Their Honours also pointed out (at [7], with reference to Lipohar v The Queen (1999) 200 CLR 485 at [78]-[79]) that "jurisdiction" is used in a variety of senses, and may refer to the amenability of a defendant to the court's writ and the geographical reach of that writ, to the subject matter of the actions entertained by a particular court, or to the location of a particular law area or district.
44 The present case involves jurisdiction in the first of these senses. It was no longer in question that the Tribunal's "long arm" jurisdiction had been enlivened, and even if there were otherwise a difficulty the appellant's appearance had subjected it to the jurisdiction. The Tribunal's jurisdiction was in part defined by the extent of the right of appeal, since "a right of appeal from any Court is a limitation of that Court's jurisdiction" (The Commonwealth v The Limerick Steamship Co Ltd (1924) 35 CLR 69 at 92 per Isaacs and Rich JJ), and by the right of appeal this Court had a potential jurisdiction over the appellant. But no jurisdiction of a South Australian court, whether the Supreme Court or the District Court, had been enlivened.
45 Two things followed. First, the appellant and the respondent had a right of appeal from the Tribunal to this Court, although one limited to appeal in point of law. Secondly, neither the appellant nor the respondent had a right of appeal under South Australian law, because no proceedings were on foot from which an appeal might lie. Any jurisdiction exercisable on appeal would be that of this Court, and there was no question of a conflicting exercise of unfettered appellate jurisdiction in South Australia.
46 In these circumstances, s 118 had no work to do. There was no occasion to give full faith and credit to the laws of South Australia as to appellate jurisdiction, and no conflict to be resolved (assuming it could be resolved by the step to lack of jurisdiction) by denial of the Tribunal's jurisdiction. I expressly only assume the step: amongst other matters, why should South Australian law trump New South Wales law rather than vice versa? As was said in John Pfeiffer Pty Ltd v Rogerson at [63], s 118 does not in its terms "state any rule which dictates what choice is to be made if there is some relevant intersection between legislation enacted by different States". Its effect in this respect was left for later resolution (at [65]).
47 On this analysis, one does not get to categorisation of appellate rights as substantive or procedural. If that categorisation be approached, again s 118 does not avail the appellant.
48 Section 118 is not concerned with choice of law, and only applies once there has been ascertained the law to which full faith and credit is to be given (John Pfeiffer Pty Ltd v Rogerson at [139]; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357 at [81]). While according to choice of law rules as now reformulated the substantive law of South Australia was to be applied in the proceedings, that choice of law did not extend to procedural law. The distinction between substantive and procedural laws remains notwithstanding the well-known difficulty in applying it. If jurisdictional laws of the kind presently in question are of the latter kind, s 118 does not dictate what jurisdiction can be exercised, but only that once it has been properly invoked the laws providing for its exercise should be respected.
49 In John Pfeiffer Pty Ltd v Rogerson at [99] Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said -
"Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain , "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive."
50 The appellant relied on the reference to "existence, extent or enforceability of the rights and duties of the parties to an action" in the second of the principles, treating appellate rights as within those words. Regard to the first of the principles, however, shows that the appellant gains no comfort. The respondent can not insist on a full right of appeal because she might have brought proceedings in the Supreme Court of South Australia. She must take the Tribunal and this Court as she finds them. Although the appellant is an unwilling litigant in the Tribunal and in a sense in this Court, it also must take the Tribunal and this Court as it finds them, and it matters not that the respondent might have brought proceedings in the Supreme Court of South Australia. This is so even when, upon a constitutional issue arising, the Tribunal was exercising federal jurisdiction (Judiciary Act s 39; see for example Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 94, 114, 136), because the constitution and structure of a State court invested with federal jurisdiction is taken as it exists and no federal law altered the jurisdictions (Constitution s 77(iii); Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 27 at 37; Kable v Director of Public Prosecutions (NSW) at 67, 82, 110).
51 The extent of a court's jurisdiction is procedural in a fundamental way, not just as regulation of "the mode or conduct of court proceedings" but as the statement of the limits within which the court can act. In the distinction between substantive and procedural laws it seems to me that the jurisdictional laws of the kind presently in question should be regarded as procedural. Thus s 118 supports the respondent rather than the appellant.
52 The extent of appellate rights has the potential to affect outcomes, of course, but so does any regulation of the mode or conduct of court proceedings, and that is not enough to overcome the fundamentally procedural nature. The appellant cited no writings treating appellate rights as substantive law. On the contrary, rights of appeal are said to be governed by the law of the forum in Graveson, Conflict of Laws - Private International Law, 7th ed, 1974, p 615; Sykes and Pryles, Australian Private Law, 3rd ed, 1991, pp 356-7; and Cheshire and North, Private International Law, 13th ed, 1999, p 72. In the discussion of substance and procedure in ALRC 58 Choice of Law para 10.9 appeals are said to be "traditionally … classified as procedural". In the Restatement of the Law, Second "Conflict of Laws", 1971, para 127 the same approach is taken.
53 While the label "procedural" is hallowed, it may be better to see appellate rights as governed by the law of the forum simply because they are a given for litigation in the forum. In the present case, to take up what I have earlier said, the only right of appeal from the Tribunal was that conferred by s 32, and there was no right of appeal to the Supreme Court of South Australia.
54 Kirby J's remarks concerning a party's choice of court materially disadvantaging the opponent can readily be appreciated. One means of alleviating that undesirable situation is, as his Honour said, the adoption of a choice of law rule which will promote an identical outcome for the parties' substantive rights. Other means are principles of forum non conveniens and the cross-vesting legislation, but these do not exclude regard to so-called "legitimate juridical advantages" in litigating in one court rather than another (see for example Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 571). Jurisdictional differences and differences in prescribed procedures are a fact of life, but judicial reworking of the jurisdictions of courts and abolition of the distinction between substantive and procedural issues can not be and have not been employed to overcome them.
55 For the appellant's other argument it relied on Mobil Australia Pty Ltd v State of Victoria (2002) 76 ALJR 926. As I have said, the argument was not clearly distinguished from the s 118 argument, and it was not fully articulated, but as I understand it came down to the contention that the New South Wales legislature lacked legislative competence to invest the Tribunal with extra-territorial jurisdiction defined by the limited right of appeal. The argument again turned on there being conflict between s 32 of the Act and the law of South Australia, it being submitted that in the federal system the Act had to "adapt to, and be consistent with, the legislative powers of the other States, as well as of the Commonwealth": Mobil Australia Pty Ltd v State of Victoria at [20] per Kirby J.
56 The question in Mobil Australia Pty Ltd v State of Victoria was whether Victorian legislation providing for the conduct of group proceedings was invalid, relevantly because of a limitation on the extraterritorial competence of the State legislature implied from the federal structure of the Constitution. A limitation of that nature was recognised (at [13]-[15], [49], [121], [177]), although it was described as "somewhat vague and ill-defined" (at [13]). But the legislation was upheld by Gleeson CJ and Gaudron, Gummow, Kirby and Hayne JJ, Callinan J dissenting.
57 Gleeson CJ said that there was nothing antithetical to the federal structure about legislation of one state that has legal consequences for persons or conduct in another state or territory (at [16]), and saw nothing in the extraterritorial reach of the group proceedings scheme incompatible with federalism (at [17]).
58 Gaudron, Gummow and Hayne JJ emphasised that jurisdiction based on the amenability of the defendant to the court's process plus choice of law rules were the basis for a court's extra-territorial adjudication, and implicitly saw that as consistent with the federal structure; their Honours said in particular (at [58]) -
"[58] It is also necessary to notice another consequence of the fact that a state court may take jurisdiction in a personal action when its originating process is served on the defendant within the bounds of its territorial jurisdiction. It inevitably follows from that fact that there can be cases in which similar, even identical, issues can be raised in the courts of two states between the same or related parties. It is inevitable, therefore, that there can be overlapping, even conflicting, procedures and judgments of the courts concerned. Those are difficulties that have hitherto been resolved by the application of principles concerning abuse of process or, more recently, by the application of cross-vesting legislation. They are not, however, difficulties that have so far been, or should now be, understood as stemming from some limitation on, or want of power in, the parliament of one or other of the states to regulate the procedures of its Supreme Court. Indeed the content, if not the existence, of the whole body of law that has developed about forum non conveniens, denies that the question is to be understood as one rooted in some territorial limitation on the powers of state parliaments which would require that either the plaintiff or the plaintiff's claim be connected with the state. If the question were one of legislative power, it would be entirely irrelevant and wrong to ask whether the defendant seeking a stay of proceedings had demonstrated that the forum chosen by the plaintiff was clearly inappropriate." (citations omitted)
59 Kirby J looked for demonstrated "operational inconsistency" or direct conflict with another State's laws, and considered that the legislation brought neither (at [130]-[145]).
60 Just as in that case there was no occasion to adapt the legislation to consistency with the legislative powers of the other States, so also in this case. In my opinion there is nothing offensive to the federal structure, requiring denial of the Tribunal's jurisdiction, in the existence of a restricted right of appeal from proceedings properly brought in the Tribunal compared to a wider right of appeal if the claim had been made in proceedings brought in some other court. Jurisdictional laws, including principles of forum non conveniens and the cross-vesting legislation, and choice of law determinations, accommodate to the federal structure. As Gaudron, Gummow and Hayne JJ made plain, denial of legislative competence is not called for.
61 In my opinion, therefore, the appellant's arguments on the constitutional issue should not be accepted. It is difficult to see how there could be any other result. Assume that there was a full right of appeal from the Tribunal to this Court but subject to a leave requirement not found in South Australia, or a full right of appeal from the Tribunal to this Court and a leave requirement in South Australia, or any other difference between the appellate regimes: the equivalent argument would mean no jurisdiction in the Tribunal. Assume a limited right of appeal from the District Court of South Australia and a full right of appeal within the Supreme Court of South Australia: the argument would collapse. Other illustrations could be given. On the test of practical application, the argument is unworkable.
62 Maguire J had little opportunity to consider the constitutional issue. His Honour adopted the reasoning of Johns J in McDonough v Stevedoring Industry Finance Committee (2000) 20 NSWCCR 385 in which (as ground 3 states) the question was whether s 25B of the Act is a valid exercise of the legislative power of the New South Wales legislature. His Honour may have had in mind Johns J's apparent rejection of the argument that s 25B was an unconstitutional "fetter on the capacity of parties to litigate a matter in a tribunal to which they were obliged to resort" (see McDonough v Stevedoring Industry Finance Committee at [41]). Whether or not his Honour's reasoning is suspect, however, does not matter. The constitutional issue, which is within an appeal in point of law, falls adversely to the appellant.
63 I go then to ground 1, which in the manner it was presented I am prepared to accept is within an appeal in point of law.
64 I have earlier referred to the issue put forward by the appellant in submissions on the s 78B application, being whether the parties had the limited right of appeal in s 32 of the Act or a full right of appeal said to be available under South Australian law. In his reasons Maguire J said, after an introductory paragraph -
"2. It is now suggested that there is an issue arising concerning the full faith and credit provision of the constitution of Australia. The issue is said to be the scope of the right of appeal that exists from a decision of this Tribunal to the Court of Appeal of New South Wales and its contrast with the right of appeal which exists from a judgment of the Supreme Court of South Australia to a Full Bench of that Court. I fail to see that there is any issue before me at present. There are two reasons for that.
3. Firstly, nobody can appeal until there is a judgment. If there is not a judgment there can be no appeal and any examination of the kind suggested by Mr Little does not presently arise. Section 78B of the Judiciary Act speaks in the present tense " Involves a matter arising under the constitution ". There is no such matter arising.
4. My second reason is this, that the Court of Appeal and I have separately and in respect of quite differential [sic] issues determined that this Tribunal is an appropriate place for this litigation to take place. I interpolate that it does not matter for anybody's purposes at the moment whether I am sitting in Sydney or Adelaide or indeed any other part of the world. This is the appropriate Tribunal for this litigation. If it goes to judgment one party will be aggrieved. That party will have an appeal pursuant to the law that governs the operation of this Tribunal which is the appropriate venue for the determination of this litigation."
65 Ground 1 describes the issue as "whether there existed a conflict between the substantive law of New South Wales and South Australia as regards the ambit of the appellant's rights in these proceedings". This is close to the issue at that time as I have described it. Maguire J declined to adjourn the proceedings because there was "no issue before me at present". His Honour gave as his first reason that there was no matter arising under the Constitution. The second reason may have been that the purported issue was unarguable, although it is (with respect) not entirely clear.
66 The appellant put little argument in support of ground 1. In my opinion his Honour was correct in his first reason, and it is unnecessary further to explore the second reason.
67 In order that s 78B apply the proceedings before his Honour had to involve what I will for short call a constitutional matter. It was not necessary that the position for which the appellant contended on the constitutional matter was correct, provided the constitutional matter was raised bona fide (see Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at [15] and cases cited). But whether the proceedings involved a constitutional matter was a different question. Mere assertion is not enough, and a postulated constitutional matter may in truth not arise (see Green v Jones (1979) 2 NSWLR 812 at 818; Narain v Parnell (1986) 9 FCR 497 at 488-9; Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73).
68 The constitutional issue in the present case evolved into one going to the jurisdiction of the Tribunal, as has been seen. But it had not reached that stage of evolution at the time of the s 78B application, and it was not for his Honour to draw out for himself a challenge to his own continuation with the proceedings which, as will be evident from my consideration of the constitutional issue, I regard as rather ambitious. At the time of the s 78B application the proceedings did not involve appellate rights. It is true that the Tribunal's jurisdiction was in part defined by the extent of the right of appeal from the Tribunal (see earlier in these reasons), but that effect on the Tribunal's jurisdiction was of no consequence to Maguire J's dealing with the proceedings. Appellate rights would come up only when his Honour had finished with the proceedings, and the proceedings with which his Honour was concerned did not involve the issue then put forward as the constitutional issue.
69 In the notice of appeal the relief claimed by the appellant was a verdict in its favour. Failure to adjourn proceedings in obedience to the s 78B(1) duty would at most upset the verdict in favour of the respondent, although it is not easy to see why it would do that, leading to a new trial. It could not lead to a verdict for the appellant. The appellant has now been able to argue the (evolved) constitutional issue, after notice to the Attorneys General. The appellant fails on that issue. No substantial wrong or miscarriage would have been occasioned if Maguire J had erred in failing to accede to the s 78B application, and so in any event pursuant to Pt 51 r 23(1) of the Rules the verdict in favour of the respondent would survive ground 1.
70 With the (evolved) constitutional issue raised in the appellant's written submissions of 20 December 2002, the proceedings before his Honour may well have involved a constitutional matter. By force of s 78B(1) it would have been his Honour's duty not to proceed pending notice to the Attorneys General. It would also have been the responsibility of counsel to draw that duty to his Honour's attention. No ground of appeal was addressed to error at this point in the proceedings. If there were error, no substantial wrong or miscarriage was occasioned.
71 I return to the submission that the limitation of the appeal to this Court to appeal in point of law was invalid and a full right of appeal was available. The argument was that the conflict between the South Australian right of appeal on all grounds and s 32 of the Act should be resolved, again by adaption of the Act to consistency with the legislative powers of the other States (Mobil Australia Pty Ltd v State of Victoria cited above), by holding s 32 of the Act valid "only to the extent that there is no inconsistency". As earlier explained, there is no relevant conflict and no constitutional cause to intervene in the extent of conferral of jurisdiction on the Tribunal and this Court. How any intervention could enlarge this Court's statutory appellate jurisdiction need not be gone into.