McNally v Resolution Life Australasia Limited

Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

Donohoe v Albulario [2025] NSWSC 9

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398; [1911] HCA 31

FZK v Dept of Customer Service [2024] NSWCATAP 185

Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Tu v University of New South Wales (2003) 57 NSWLR 376; [2003] NSWCA 170

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213

[2024] NSWCATAD 388

1. The dispute underlying this appeal concerns the appellant's complaint (the complaint) made under the Anti-Discrimination Act 1977 (NSW) of disability and age discrimination.
2. The complaint arises in the following context. In 1987 the appellant obtained income protection insurance cover, which was increased in 1991 (the policy). The respondent currently holds rights and responsibilities in relation to the policy. In 2017, the respondent accepted a claim by the appellant and began paying him monthly benefits. However, after a certain age, the monthly benefits paid to him were reduced.
3. The reduction in monthly benefits arises from a "rider" to the policy (the Rider). The Rider relevantly provides:

"This Rider is made part of the Policy to which it is attached. All the provisions, exclusions and limitations of the Policy, not inconsistent with those contained herein, shall apply to this Rider as at the Effective Date of this Rider.

Part 4.7(d) of the Policy shall have no operation in relation to the benefits payable for Total Disability as a result of Sickness and the following additional provision shall apply where the Insured suffers Total Disability as a result of a Sickness.

Notwithstanding the provisions of Part 4.1 of the Policy where the Insured suffers Total Disability as a result of Sickness then the Company will pay a Lifetime Sickness Benefit calculated as follows:

(a) Total Disability up to and including Age 55

Where Total Disability commences prior to the Insured's 56th Birthday, the Company will pay the Monthly Benefit for the lifetime of the Insured subject to the Insured continuing to suffer Total Disability.

Where Total Disability commences on or after the Insured's 56th Birthday but before his or her 65th Birthday, the Company will pay the Monthly Benefit up to the Insured's 65th Birthday and a percentage of the Monthly Benefit beyond the Insured's 65th Birthday for the lifetime of the Insured subject to the Insured continuing to suffer Total Disability. The percentage of the Monthly Benefit payable will be determined by the age at which the Total Disability commenced, in accordance with the following table:

[Table omitted]

No benefits are payable where Total Disability commences on or after the Insured's 65th Birthday."

1. Before the substantive matter could be heard, the respondent applied to have the proceedings dismissed on the ground that the Tribunal lacked jurisdiction to determine the matter. The respondent contended that its defence to the complaint raised an issue of federal jurisdiction that the Tribunal, not being a court of a state, was not authorised to determine.
2. The Tribunal recorded, at [6] of the first instance decision (the Decision), that the respondent's original points of defence included the following:

"4. The Respondent asserts that insofar as they purport to relate to:

a) the life insurance business of registered life insurance companies; or

b) to the policy issued by the Respondent to the Applicant,

ss 49M and 49ZYN of the Act are invalid under section 109 of the Australian Constitution.

(For clarity the Respondent relies on Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330 in this regard)".

1. At [7] the Tribunal recorded that the respondent's amended points of defence relevantly stated:

"4. The Respondent asserts that insofar as they purport to relate to:

a) the life insurance business of registered life insurance companies; or

b) to the policy issued by the Respondent to the Applicant,

ss 49M and 49ZYN of the Act are invalid under section 109 of the Commonwealth Constitution to the extent that they alter, impair or detract from the Respondents ability to classify risks and fix rates of premium in that business in accordance with its own judgement founded upon the advice of actuaries and the practices of prudent insurers, as required by ss 3, 96, 114, 230A and 230AAA of the Life Insurance Act 1995 (Cth) and prudential standards made thereunder.

(For clarity the Respondent relies on Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330 in this regard)

4A. In addition or in the alternative to paragraph 4, s 49ZYN of the Act is invalid under section 109 of the Commonwealth Constitution to the extent that it is inconsistent with ss 114, 230A and 230AAA of the Life Insurance Act 1995 (Cth) and prudential standards made thereunder requiring that the life insurance business of registered life insurance companies take into account mortality when valuing policy liabilities and protecting the interests of policy owners or perspective policy owners, specifically, Prudential Standard LPS 340 Valuation of Policy Liabilities."

1. The Tribunal recognised that the Tribunal has no jurisdiction to exercise judicial power over a matter within federal jurisdiction and summarised the principles as they applied in the circumstances described above. The Tribunal said, at [21] to [27]:

"21 In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns) the High Court made clear that this Tribunal has no jurisdiction to exercise judicial power over a matter within federal jurisdiction. That is because this Tribunal is not a court and, more precisely, not a Court of a State endowed with jurisdiction under Chapter III of the Constitution: Burns at [55] (Kiefel CJ, Bell and Keane JJ), [68]-[69] (Gageler J). This Tribunal does, however, have incidental (or anterior) jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; Wilson v Chan & Naylor Parramatta Pty Ltd (2023) 103 NSWLR 140; [2020] NSWCA 213 (Wilson NSWCA); Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta).

22 Part 3A of the CAT Act deals with 'Federal Proceedings'. Section 34A defines 'federal jurisdiction' as jurisdiction of a kind referred to in ss 75 or 76 of the Constitution. The Tribunal has no jurisdiction to determine such matters, it not being one of the 'courts of the States' as referred to in s 77 of the Constitution: Burns per Kiefel CJ, Bell and Keane JJ. The "subject matters identified in ss 75 and 76 of the Constitution" include, at s 76(i) and (ii) of the Constitution:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament;

23 Section 109 of the Constitution states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

24 The application of s 109 of the Constitution to these proceedings fundamentally involves interpretation of the Constitution. The question of whether section 49M and 49ZYN of the Act are inconsistent with the provisions of the Life Insurance Act 1995 (Cth) is therefore a matter of federal jurisdiction, which this Tribunal can neither consider nor determine.

25 In Citta the High Court held that where there is a 'justiciable controversy' in issue involving the exercise of federal jurisdiction, then a State Tribunal does not have jurisdiction. The High Court specified at [31] that this included 'a defence that is asserted in the course of the controversy':

Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter 'arising under' a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy (LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581, [other citations omitted]). And amongst the circumstances in which a justiciable controversy answers the description in s 76(i) of a matter 'arising under' the Constitution is where the invalidity or inoperability of a Commonwealth or State law is asserted in the course of the controversy in reliance on the Constitution.

26 This Tribunal does not need to consider the merits of the constitutional defence raised by the Respondent. As stated in Citta at [45] - [46]:

Whatever the merits of the constitutional defence, there is and could be no suggestion that the constitutional defence was not genuinely raised or is so incoherent as to be insusceptible of judicial determination on those merits.

Together with the claim of the respondent to a remedy under the State Act, the constitutional defence therefore formed part of and gave character to a single justiciable controversy comprising a matter within the description in each of s 76(i) and s 76(ii) of the Constitution. For that reason, the hearing and determination of the claim, no less than the hearing and determination of the defence, was beyond the jurisdiction conferred on the Tribunal by the State Act. The Tribunal was correct so to decide.

27 All this Tribunal can therefore consider in the context of this application is whether the defence is 'genuinely raised' and is not 'so incoherent as to be insusceptible of judicial determination on those merits': Citta at [45]."

1. Ultimately, the Tribunal found that it lacked the authority to decide the matter: at [31]-[33] of the Decision. The Tribunal highlighted that this was not the end of the road for the appellant and that the appellant could approach the Local Court or the District Court, to determine the complaint: at [43] of the Decision.
2. The appellant is understandably disappointed that this anterior legal issue has, as submitted by him, hijacked the process. Nevertheless, it is the Tribunal's (and the Appeal Panel's) first duty to ensure that it has authority to decide a matter: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415; [1911] HCA 31; Hazeldell Ltd v Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446; [1924] HCA 36; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1]. Had the Tribunal proceeded to determine the substantive issues, if it had no jurisdiction to do so, any decision would be liable to be set aside and be of no utility to the appellant: Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 at [3], [11]. Doing so would lead to a waste of costs and resources for all involved.
3. For the reasons that follow, even though we have allowed the appeal, we have decided that the Tribunal has no jurisdiction to hear and determine the complaint.

1. This appeal is an internal appeal brought under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The appeal is from an ancillary decision; and accordingly, the appellant may appeal as of right on a question of law, or, if the appeal is made on other grounds, the appellant must seek leave: Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [11]- [12], [19]-[22].

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25], the Appeal Panel summarised the principles that apply in determining whether a question of law arises on an appeal. This was also the subject of several other Appeal Panel decisions, including Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23].
2. The Appeal Panel has stated that where a party is self-represented, "a more generous approach is warranted" towards the way the appeal has been framed, to ensure procedural fairness: Unique at [27]. This can extend to the Appeal Panel, itself, considering whether a question of law has been raised: Unique at [28].

1. The appellant's grounds of appeal are set out in a document titled "Document 1" and dated 16 January 2025. The document, which is 10 pages long, does not particularise the grounds of appeal. However, at the appeal hearing, the appellant explained the essence of his appeal in oral submissions.
2. The main issues raised by the appellant can be summarised as follows:

(1) There was a breach of procedural fairness in several respects, including the following:

(a) The anterior, jurisdictional, point should not have been heard, as the proceedings were listed so that the appellant could run his substantive case.

(b) The appellant was not given a sufficient opportunity to cross examine the respondent's witnesses or to give his submissions.

(2) The Tribunal erred in concluding it lacked jurisdiction, including for the following reasons:

(a) The policy did not fall within the terms of the Life Insurance Act 1995 (Cth).

(b) The Rider was not "as agreed" but was at the instance of the insurer.

(c) There is a dispute about the terms of the policy and the applicability of the Rider that was not determined.

(d) The Tribunal misstated some facts.

(3) The Decision creates unfairness as it, in practical terms, sets a precedent about the Rider and the ability of persons with a similar rider in their policy, to have their complaints heard in the Tribunal, when the substantive case was not heard and determined.

1. In addition, there is raised an important procedural issue, which we turn to first: that the Tribunal, at first instance, was not properly constituted.
2. The respondent, too, distilled what they perceived the grounds of appeal to be. These are consistent with what we have summarised above.

1. The Appeal Panel was alerted to an issue concerning the constitution of the Tribunal at first instance. As the report of the Decision disclosed, the hearing took place over three days. The parties agree that day two was simply a directions hearing, but that days one and three concerned aspects of the substantive hearing.
2. The problem which arises is that on day one, the Tribunal was constituted by a Senior Member and a General Member; whereas, on day three (and day two, though that is not relevant), it appeared to the parties that the Tribunal was constituted by the Senior Member alone. The parties were not able to assist the Appeal Panel, definitively, as to whether this was indeed the case, as the matter proceeded by audio visual link. All they could say was that they could not see the General Member on the screen and that when inquiries of the Registry were made, it appeared that the General Member had not been "allocated" that day.
3. In the event that the Tribunal, at first instance, was not properly constituted, this could constitute a jurisdictional error that vitiates the proceedings: Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978 (Linquist) at [52]. Whether that was the case may raise a question of law that arises on an appeal: Attorney General of New South Wales v World Best Holdings (2005) 63 NSWLR 557; [2005] NSWCA 261 (World Best Holdings) at [3], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
4. Generally, to raise a question of law on appeal to the Appeal Panel, the facts must not be in dispute. Here, however, this question requires the determination of some facts, including who constituted the Tribunal, at first instance. Notwithstanding this, we are satisfied that the question of whether the Tribunal was properly constituted indeed raises a question of law on the appeal; and does not require leave to appeal. The outstanding facts are "procedural facts". As Basten JA noted in Donohoe v Albulario [2025] NSWSC 9 at [33], where it is said that the processes of the Tribunal failed, it may be appropriate to determine some facts. Such a requirement does not gainsay that a question of law has been raised. Further, as identified by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [10], it should be a relatively easy matter to prove the necessary facts in a case concerning procedural unfairness.
5. The parties did not object to the Appeal Panel confirming the constitution of the Tribunal, at first instance, with the Registry. That position has now been confirmed and is as the parties suspected.

1. At a practical level, the change in constitution of the Tribunal, at first instance, might be explained by the fact that the Tribunal was originally constituted to hear the substantive dispute; but then, when the jurisdictional issue arose, which concerned only a legal question, only the legal member, the Senior Member, continued to hear the matter.
2. This, however, provides only a partial explanation.
3. It is notable that the NCAT Act specifies special constitution requirements, in some cases. Matters under the Anti-Discrimination Act are allocated to the Administrative and Equal Opportunity Division (the Division): Sch 3, cl 3 of the NCAT Act. In such cases, the Tribunal is to be constituted by one Division member who is an Australian lawyer; or, by two or more Division members (with at least one being an Australian lawyer): Sch 3, cl 4 of the NCAT Act. Accordingly, it was conceivable that the proceedings could have been constituted by the Senior Member alone, from the very beginning. Nevertheless, this patently is not what happened. The Tribunal was originally constituted with two members.
4. Further, whilst the President of the Tribunal may replace a member, or direct that a matter that has been commenced continue with a certain member or members, this does not appear to have happened: s 52 of the NCAT Act. Further, it does not explain why, in the reasons for decision, the General Member is still listed as a member constituting the Tribunal.
5. The respondent accepts that as this issue concerns the constitution of the Tribunal, this might be seen as going to the heart of whether the Tribunal exercised its jurisdiction. Nevertheless, the respondent submits that we might treat this as an irregularity and refrain from setting the Decision aside, relying on ss 53(3) and 53(4) of the NCAT Act.

1. We are satisfied that, at first instance, the Tribunal was not constituted in accordance with the NCAT Act. The question becomes whether this vitiates its Decision and the Decision must be set aside. The weight of authority points to the conclusion that a decision made by an invalidly constituted tribunal is void.
2. The respondent brought to our attention the decision of the Supreme Court of NSW in Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 (Gleeson). In that case, the relevant tribunal (the authority) had powers to regulate, control, inquire into and adjudicate complaints about the conduct of harness racing trainers. Its disciplinary powers extended to fining, suspending or disqualifying trainers. The authority suspended the applicant, who then applied to the Supreme Court for a declaration that the authority's decision was contrary to law. The primary basis for challenging the decision was that the authority was not validly constituted. The authority was said to be invalidly constituted for two reasons: first, that two of the authority's four members were not present at all days of the hearing; and second, that a member of the authority was a witness in, and assisted in investigating, the complaint against the applicant.
3. Young J held that both grounds constituted a denial of natural justice which required the decision to be quashed. His Honour said at 521:

"It is a fundamental rule of justice that when a tribunal is making an adjudication it must be on evidence which all the members of the tribunal making the adjudication have heard ..."

1. In Tu v University of New South Wales (2003) 57 NSWLR 376; [2003] NSWCA 170 (Tu), the NSW Court of Appeal considered whether the Administrative Decisions Tribunal had been properly constituted when continuing to hear a part-heard matter under the Anti-Discrimination Act. The Tribunal had initially been constituted by a judicial member and two general members. Partway through the hearing, the judicial member became unavailable, and a new judicial member was allocated. A precondition for reconstitution of the Tribunal under s 79 of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act) was the consent of the parties. The applicant withheld his consent, but the Tribunal nevertheless proceeded to hear and determine the complaint. The Court of Appeal held (at [32]) that the reconstitution of the Tribunal was contrary to the statute and that the error vitiated the orders made, most importantly the order dismissing the proceedings. The Court allowed the appeal and set the Tribunal's orders aside, remitting the matter for determination.
2. World Best Holdings concerned a decision of the Administrative Decisions Tribunal made by a panel which included members who lacked the qualifications required by the relevant statute. On appeal to the NSW Court of Appeal, all three judges agreed that the Tribunal had been constituted contrary to the legislative requirements. One question, however, was whether s 81(3) of the ADT Act (which is in similar terms to s 53(3) of the NCAT Act) saved the Tribunal's decision from invalidity.
3. Chief Justice Spigelman referred to the historical basis for s 81(3) of the ADT Act, noting that the purpose of the provision was to "ensure that litigants were not defeated by mere technicalities" (at [84]). Historically, the provisions were directed to practice and procedure and so the scope and purpose of s 81(3) was "confined to procedural irregularities" (at [97]). As a consequence, Spigelman CJ considered (at [97]) that s 81(3) applied only to:

"steps or decisions of a procedural character. It does not, in my opinion, relate to the ultimate decision when made by a decision-maker who does not have the capacity to exercise the statutory power. Whilst the terminology of 'advisory capacity' may often suggest procedural matters, what happened in this case was that a statutory power was exercised by persons who had no authority of any character to do so. This is a jurisdictional error of a fundamental kind. It is not a procedural irregularity."

1. While disagreeing with some aspects of Spigelman CJ's reasoning, Tobias JA agreed that s 81(3) did not operate to save the Tribunal's decision from invalidity where the invalid constitution of the Tribunal related not only to the conduct of the proceedings but also its ultimate adjudication. In Tobias JA's view, the mis-constitution of the Tribunal was not "merely procedural in nature", but rather "a critical element of the legislative scheme" (at [196]-[197]).
2. The then President of the Court of Appeal dissented, reasoning that the constitution of the Tribunal was a procedural default occasioned by the Tribunal's failure to comply with a legislative provision. That being the case, s 81(3) could be employed to cure the procedurally defective constitution of the Tribunal (at [163]-[164]).
3. Finally, we note the decision of Adamson J in Linquist, which was an appeal on a question of law from a decision of this Tribunal under the Health Practitioner Regulation National Law 2009 (NSW) (the National Law). In accordance with the requirements of the National Law, at first instance the Tribunal was properly constituted for the purposes of an inquiry by an Australian lawyer of over 7 years' standing (the presiding member), two health practitioners and a lay member.
4. In the course of the inquiry, an issue arose as to the Tribunal's jurisdiction. An initial decision on the Tribunal's jurisdiction was published to the parties, with the names of all four members of the panel being included on the coversheet. Later that day, the decision was amended to reflect that the decision had been delivered by the presiding member alone. The validity of both decisions was an issue in the appeal to the Supreme Court.
5. Adamson J found that s 165B(5A) of the National Law, which provides that the Tribunal may be constituted by the presiding member alone in health matters constituted to determine ancillary or interlocutory matters, nevertheless "provides no warrant for a 'subset' of a constituted Tribunal to separately determine matters in the context of a hearing before the Tribunal" (at [52]). As there was no reconstitution of the Tribunal for the purpose of the decision as to jurisdiction, the decision of the presiding member was beyond its jurisdiction and was void.

1. As we have noted above, in the first instance proceedings the subject of this appeal, the Tribunal was initially constituted by a Senior Member and a General Member. Both members were present on day one of the hearing, but only the Senior Member conducted the hearing on days two and three. While day two was a directions hearing, day three was a resumption of the hearing of the ancillary application as to the Tribunal's jurisdiction. When the Tribunal delivered its decision on the ancillary question, both members were named as part of the coram.
2. Two possible scenarios arise on those facts. First, it is possible that both members participated in the determination of the ancillary question, despite the General Member not being present for the resumed hearing on that issue. Such a case would be analogous to Gleeson, where a member of the Tribunal participated in the decision-making process despite not being present for part of the hearing. Alternatively, the second scenario is that the Tribunal reconstituted to comprise the Senior Member alone for the purpose of the ancillary question, and the General Member's name was recorded on the published decision in error. As there was no direction to this effect under s 52 of the NCAT Act, this was a mis-constitution. The Tribunal was not separately constituted to determine the ancillary issue of jurisdiction. Following Linquist and Tu, such a scenario would amount to a jurisdictional error.
3. In either scenario, the decision of the Tribunal was vitiated by jurisdictional error and must be set aside. This is not a mere irregularity.

1. As we have concluded the Tribunal's decision must be set aside, we turn to consider what course to take in light of that conclusion.
2. The next ground of appeal is whether the Tribunal has jurisdiction to hear and determine the complaint. As explained further below, this raises a question of law and leave to appeal is not necessary.
3. We consider that it is appropriate for the Appeal Panel to determine the ground of appeal concerning the jurisdiction of the Tribunal by way of a new hearing, pursuant to s 80(3) of the NCAT Act. This is for the following reasons:

(1) Pursuant to s 80(3) of the NCAT Act, the Appeal Panel may decide to deal with an appeal by way of a new hearing, where the grounds of the appeal warrant a new hearing.

(2) The Decision must be set aside.

(3) This leaves the question of whether the Tribunal has no authority to decide the substantive matter because it raises a federal matter. This raises a question of law yet to be determined.

(4) The appeal, insofar as the jurisdiction of the Tribunal is concerned, may be determined on the basis of the documents before the Tribunal at first instance and settled authority as to how to determine the question.

(5) It will save time and costs for the Appeal Panel to determine the jurisdiction issue.

(6) Therefore, the ground of appeal warrants a new hearing.

1. The parties did not object to the Appeal Panel taking such a course.

1. As explained above, the Tribunal's and the Appeal Panel's first duty is to ensure that it has authority to decide a matter.
2. The question of whether the Tribunal has authority to decide a matter raises a question of law: FZK v Dept of Customer Service [2024] NSWCATAP 185 at [104]. That question of law arises on this appeal.

1. A Tribunal that is not a court of a state may not exercise the judicial power of the Commonwealth. There can be no dispute that the Tribunal, in determining the appellant's complaint under the Anti-Discrimination Act, would be exercising judicial power. The analysis in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta) at [12]-[16] would yield the same result when applied to the equivalent NSW legislation (that is to say, the Anti-Discrimination Act).
2. There can also be no dispute that the Tribunal is not a court of a state: Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [184], [204], [228].
3. As noted in Citta at [31], the characterisation of the matter as a federal matter affects the entirety of the justiciable controversy, even where the relevant claim or defence is resolved or withdrawn:

"Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter 'arising under' a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy. And amongst the circumstances in which a justiciable controversy answers the description in s 76(i) of a matter 'arising under' the Constitution is where the invalidity or inoperability of a Commonwealth or State law is asserted in the course of the controversy in reliance on the Constitution. In each case, the assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn."

1. It is sufficient to look at the points of defence extracted at [5]-[6] above, to demonstrate that the respondent has raised a matter arising under a law of the Commonwealth and a matter arising under the Constitution as explained in the above paragraph.
2. The real question is whether these issues are sufficiently raised or raised in the requisite sense.
3. The test for whether a federal matter is raised in the requisite sense is not concerned with the "degree of arguability" of the matter (Citta at [34]).
4. The High Court of Australia said in Citta at [35]:

"... it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument."

1. The Senior Member correctly identified the principles to determine this question, as we have extracted above at [7].
2. We now turn to consider the issue ourselves.

1. There are several disputes between the parties as to the applicability and effect of the Rider. The appellant contends that these disputes are relevant to whether there is, genuinely raised, a federal matter. The respondent maintains that the threshold for determining whether there is a federal matter is so low that we do not need to engage with these, other than to ensure the defences raised are genuine and comprehensible.
2. The disputes included the following:

(1) The appellant maintains he did not agree to the Rider and in any event contends it does not apply to his circumstances. Further, there is a dispute as to terms of the policy.

(2) On the other hand, the respondent puts forward the policy with the Rider as being the operative policy and maintains the Rider applies.

(3) The respondent contends that the policy is governed by the Life Insurance Act.

(4) The appellant contends that the policy did not fall within that Act because the actions of the Respondent in applying the Rider "permit alteration to my benefits".

(5) The appellant submits that the benefits may be altered "at the instance of the life company concerned" and relied on s 9A(3) of the Life Insurance Act which provides:

(3) A contract of insurance is not a continuous disability policy if the terms of the contract permit alteration, at the instance of the life company concerned, of the benefits provided for by the contract or the premiums payable under the contract.

(6) On the other hand, the respondent maintained that the benefits under the policy were never altered; and even though the payments reduced, this was in accordance with the terms of the policy.

1. The substance of the abovementioned disputes need not be considered by us when we are considering jurisdiction. This is because the only issues for us are whether the defence, which relies on federal law, is:

(1) genuinely raised; and

(2) not incapable, on its face, of legal argument.

1. We are satisfied that the defences arising under federal law were genuinely raised. They were raised in the original points of defence and there is nothing to suggest the defences were ingenuously raised.
2. So too are we satisfied that the respondent's defence is capable of legal argument: it is clearly articulated and not incomprehensible.

1. The Tribunal (including the Appeal Panel) should determine all issues before it, unless there are good reasons not to do so: The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 at [8]; Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]- [5].
2. As we have determined we have no jurisdiction, it would be inappropriate for the Appeal Panel to determine the other aspects of the appeal, as we would have no authority to decide the appeal.
3. Ultimately, there may be many issues to resolve between the parties. Those matters may include the terms of the policy and the operation and applicability of the Rider. However, these are not matters for the Tribunal (or the Appeal Panel). Ultimately, even if the issues of federal law fall away, these are not matters which the Tribunal has jurisdiction to determine. Once the controversy attracts the constitutional character through the constitutional defence, the controversy remains federal even if the constitutional defence were later to be rejected by a court, or withdrawn: Citta at [31]-[33]. The Tribunal has no authority to decide the substantive case. The Tribunal may not determine the complaint.
4. For this reason, it is inappropriate for the Appeal Panel to consider any of the appellant's other grounds of appeal.

1. The respondent does not seek any costs order and none will be made.

(2) The decision of the Tribunal made on 20 December 2024 is set aside.

(3) Proceedings number 2024/00076547 is dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.