Building Services (Complaint Resolution Administration) Act 2011 (WA)

Constitution

Corporations Act 2001 (Cth)

Interpretation Act 1984 (WA)

State Administrative Tribunal Act 2004 (WA)

Trade Practices Act 1974 (Cth)

Wrongs Act 1958 (Vic)

ACCC v Daniels Corporation International Pty Ltd [2001] FCA 244; (2001) 108 FCR 123

Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 54

Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 96 ALJR 234

Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360

Mustac v Medical Board of Western Australia [2007] WASCA 128

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

Owners of Strata Plan 58161 and Hanssen Pty Ltd [2022] WASAT 77

Seven Network v Cricket Australia (2021) 383 ALR 53

Smith v National Australia Bank Limited [2022] FCA 1186

Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226

WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179

WorkPac Pty Ltd v Rossato (2021) 271 CLR 456

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536

1. This proceeding was commenced by an application (Transfer Application) made by the Building Commissioner (Commissioner) pursuant to s 55 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to transfer, to the Tribunal, a matter that is before the Commissioner under s 51 of the BSCRA Act. In 2015, on a complaint made by the applicant strata company (strata company), the Commissioner made a building remedy order[1] (BRO) which required the respondent (Hanssen) to undertake remedial works on an apartment building it had constructed, and to complete those works within 90 days. In correspondence to the Commissioner in August 2021, the strata company contended that Hanssen had not fully complied with the BRO and called for the Commissioner to revoke the BRO and to issue a monetary building remedy order instead (monetary order).[2] It is that matter which the Commissioner seeks to transfer to the Tribunal by the Transfer Application.[3]
2. In turn, Hanssen made an application for the Tribunal to dismiss the Transfer Application on the basis that the Tribunal has no jurisdiction to deal with it (Dismissal Application).
3. Hanssen's argument as to jurisdiction rests on provisions of the Constitution (constitutional argument). The constitutional argument has two planks. First, Hanssen says that the Tribunal's ability to make a monetary order against it, and which is capable of enforcement against it, depends upon the legal status it is afforded by provisions of the Corporations Act 2001 (Cth).[4] Hanssen contends that for that reason, the controversy between the parties (that is, the matter) is a matter arising under a law of the Commonwealth, for the purposes of s 76(ii) of the Constitution.[5] Hanssen says that the matter therefore falls within federal jurisdiction which, by virtue of s 77(iii) of the Constitution, may only be exercised by such State courts as have been vested with federal jurisdiction (Chapter III court). As the Tribunal is not a Chapter III court, Hanssen says that the Tribunal has no jurisdiction to deal with the Transfer Application.
4. The second plank of Hanssen's argument proceeds from the same premise, but goes further. Hanssen says that the BSCRA Act is invalid to the extent that it purports to confer jurisdiction on an entity other than a Chapter III court, namely the Commissioner, to determine the rights and liabilities of the parties in a dispute (that is, a matter) in which a corporation is a party, with the result that the BRO is invalid.[6] Hanssen says that the validity of the BSCRA Act is a matter arising under the Constitution so that, by its advancement of this second plank of its constitutional argument, the dispute is a matter for the purposes of s 76(i) of the Constitution.[7] If that is so then, to the extent that the BSCRA Act purports to confer jurisdiction on the Tribunal which involves the determination of a matter within federal jurisdiction, s 7 of the Interpretation Act 1984 (WA) would require that the BSCRA Act be construed to exclude that jurisdiction.[8]
5. Hanssen says that the constitutional argument having been raised the Transfer Application is now a matter within federal jurisdiction and that the Tribunal therefore does not have jurisdiction to deal with it.
6. In Citta Hobart Pty Ltd v Cawthorn[9] (Citta), the plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) concluded that for a claim or defence which relies on a Commonwealth law or on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution so that it falls within federal jurisdiction, 'it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.'[10]
7. For the reasons which follow, while there is no dispute that the constitutional argument was genuinely raised in answer to the Transfer Application, we are not persuaded that the constitutional argument is not incapable on its face of legal argument. Accordingly, we are of the opinion that the Tribunal has jurisdiction to deal with the Transfer Application and the Dismissal Application should therefore be dismissed.

The Tribunal's duty to ensure it has jurisdiction

1. The Tribunal's jurisdiction derives from the State Administrative Tribunal Act 2004 (WA) (SAT Act) and from enabling Western Australian legislation which expressly confers authority on the Tribunal to determine applications for relief in its original jurisdiction or in its review jurisdiction.[11]
2. There is no doubt that the Tribunal has a duty and concomitant authority - an incidental jurisdiction[12] - to ensure that a proceeding commenced in or referred to the Tribunal is, and remains, within its jurisdiction to hear and determine.[13]
3. In every case, in order to comply with its duty to ensure that it has jurisdiction, the Tribunal will, at the least, need to confirm that an application made or referred to it is made or referred pursuant to a provision of the SAT Act or of other enabling legislation. In this case, the Transfer Application was made pursuant to s 55 of the BSCRA Act which confers jurisdiction on the Tribunal to consent to a transfer, by the Commissioner, of a proceeding with which the Commissioner is dealing, pursuant to s 51 of the BSCRA Act. If the Tribunal consents to that transfer it then deals with the matter pursuant to s 51 of the BSCRA Act, in the exercise of its original jurisdiction.
4. In a case where a claim or defence is said to fall within federal jurisdiction, however, the Tribunal's enquiry as to its jurisdiction does not stop with its confirmation that the SAT Act, or other enabling legislation, has conferred original or review jurisdiction on it. That is because the Tribunal is an administrative tribunal and not a court,[14] much less a Chapter III court, and it therefore has no jurisdiction to determine matters which are within federal jurisdiction.[15]
5. The SAT Act does not contain an express conferral of power on the Tribunal to take steps to ensure its own compliance with that duty. Further, in this case, there is nothing in the BSCRA Act which expressly confers that power. Instead, the Tribunal has an implied power to take steps to secure its own compliance with its duty to ensure that proceedings before it are within its jurisdiction to hear and determine.[16]
6. In the exercise of that implied power in this case, following its receipt of the Dismissal Application, the Tribunal invited submissions as to jurisdiction from the parties, invited submissions from the Attorney General for Western Australia as an amicus curiae and received written and oral submissions. The Tribunal's attention was drawn to the fact that the Victorian Court of Appeal was about to hear a case involving the referral of various questions of law, including an argument identical to the first plank of the constitutional argument. That case was Thurin v Krongold Constructions (Aust) Pty Ltd (Thurin).[17] The Tribunal adjourned the hearing of the Dismissal Application pending the publication of the judgment of the court in Thurin.[18] The parties were later invited to make submissions addressing the relevance of Thurin to this case.
7. The outcome of the Tribunal's enquiry as to its jurisdiction is that the Tribunal must form an opinion - rather than a conclusion with legal effect - about the limits of its own jurisdiction, for the purpose of moulding its conduct to accord with the law.[19]
8. As we have already observed, if a party to a proceeding in the Tribunal raises a claim or defence which is said to fall within federal jurisdiction, the Tribunal's enquiry is concerned with two questions. The proceeding as a whole will fall within federal jurisdiction if, first, the claim or defence is genuinely raised and, secondly, if the claim is not incapable on its face of legal argument.[20]
9. Before turning to explain our opinion in relation to the constitutional argument, and thus to the Tribunal's jurisdiction, it is convenient to briefly address relevant aspects of the decision in Thurin and to outline the submissions made by the parties in light of Thurin.

1. The Thurins entered into a contract with Krongold Constructions (Aust) Pty Ltd (Krongold) to demolish their home and build a new one. The Thurins alleged that Krongold's building work was defective and an expert was appointed under the contract to determine the various disputes between the parties in relation to the performance of the contract. The expert made a determination. The Thurins then commenced proceedings in the Victorian Civil and Administrative Tribunal (VCAT) to enforce the expert determination. Two proceedings in the Victorian Supreme Court were also commenced between the Thurins and Krongold. Other contractors who performed work for Krongold in the construction of the home were joined in the VCAT and Supreme Court proceedings.
2. Amongst the claims it advanced in the various proceedings, Krongold claimed that it was a corporation incorporated under the Corporations Act and that, as a result, the VCAT did not have jurisdiction to determine the proceedings before it. Krongold's defence in the VCAT proceeding also included claims for apportionment and contribution from one of the contractors, pursuant to the Wrongs Act 1958 (Vic). The latter claims were based on allegations of liability under provisions of the Trade Practices Act 1974 (Cth) (TPA). Krongold claimed that the VCAT proceeding therefore involved a matter arising under a law of the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution.
3. Questions as to whether Krongold's defences invoked federal jurisdiction were among a series of questions that VCAT referred to the Victorian Court of Appeal. The Court of Appeal unanimously held that once Krongold invoked the alleged contraventions of the TPA, the VCAT proceeding came within federal jurisdiction so that VCAT had no jurisdiction to hear and determine it.[21] That conclusion meant that it was unnecessary for the court to deal with the question concerning the Corporations Act. The court decided to deal with that question nevertheless.[22] Its conclusions on that issue were necessarily obiter dicta.
4. There was no dispute, and the court agreed, that a dispute concerning a right or duty, or a defence, that had its immediate source in a Commonwealth law (such as a claim under the TPA) would fall within the scope of s76(ii) of the Constitution.[23] The court also accepted that where the subject-matter of the controversy, although not arising directly under a Commonwealth law, was sufficiently connected to a Commonwealth law so that it is properly characterised as arising under that law, albeit indirectly, that controversy would properly be characterised as a matter arising under a Commonwealth law for the purposes of s 76(ii) of the Constitution.[24] The court held that Krongold's defence based on the Corporations Act was not of that kind. In summary, the court held that:

... where the source of the rights and duties that are in issue between the parties is a Commonwealth law, the matter will properly be characterised as one 'arising under' that law. That will include a matter where the claim is one directly founded on a law of the Commonwealth. It will also include a claim at common law or equity, or under a law of a State, where the claim concerns a right or property which is the creation of federal law. In contrast, where the source of the rights and duties in issue between the parties is a law of a State or the common law, and the only connection with a law of the Commonwealth is that such a law is the source of one party's legal capacity to sue or be sued (and where that capacity is not in issue between the parties), the matter will not properly be characterised as one 'arising under' the Commonwealth law. Rather, the party's capacity is merely an incidental consideration.[25]

1. Accordingly, the court concluded that the fact that the respondents to the VCAT proceeding (that is, Krongold and the contractor) were corporations registered under the Corporations Act did not of itself mean that that proceeding involved a matter arising under any law of the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution.

The submissions advanced by the parties in relation to the constitutional argument

1. Notwithstanding the decision in Thurin, counsel for Hanssen submitted that the Tribunal should find that the constitutional argument that Hanssen advances in this case is one which is not incapable of legal argument. The basis for that submission was as follows.
2. Hanssen accepts that 'within the limits of its state judicial power to determine its own jurisdiction, the Tribunal is practically bound to follow and apply the law as stated in Thurin'[26] but submits that 'Thurin stands for the proposition that the [constitutional] argument is incorrect, not for the proposition that it is unarguable'.[27]
3. Hanssen submits that its constitutional argument is not incapable on its face of legal argument for the following reasons:[28]

(a) The same argument was carefully put to the Victorian Court of Appeal and the court expressly acknowledged that the question required a detailed consideration of the relevant High Court authorities;

(b) The conclusion of the Court of Appeal in Thurin resulted from careful and detailed analysis which proceeded over about 40 paragraphs of the court's reasons;

(c) If the argument amounted to constitutional or legal nonsense, it would not have been supported by the carefully reasoned obiter of Lee J in Oliver v Nine Network Australia Pty Ltd[29](Oliver) and Mulley v Hayes,[30] (Mulley) nor would it have been advanced by senior counsel in a number of recent cases,[31] nor would the argument have been referred to the Victorian Court of Appeal for determination in Thurin;

(d) If the argument amounted to constitutional or legal nonsense, the Attorney General would not have submitted, at an earlier stage in these proceedings (before Thurin was delivered), that the constitutional argument was capable of legal argument on its face;

(e) If the argument amounted to constitutional or legal nonsense, it would not have been necessary for the Tribunal to adjourn the Dismissal Application to await the decision in Thurin; and

(f) If the argument amounted to constitutional or legal nonsense, the Victorian Court of Appeal in Thurin would not have carefully articulated, in obiter, the reasons why it concluded the argument to be incorrect.

1. Hanssen also pointed, by way of example, to cases where arguments contrary to the existing authority of decisions of intermediate courts of appeal have been advanced, only to be subsequently proved to be correct,[32] as an illustration of why its constitutional argument cannot be regarded as incapable on its face of legal argument in light of Thurin.
2. Finally, Hanssen submits that the second plank of its constitutional argument was not directly answered by Thurin. That is, the second plank of its argument is that the Tribunal could not make a monetary order against Hanssen without determining the validity of the BRO made by the Commissioner. Hanssen submits that to make such a determination - even if it requires no more than a sentence or two, to the effect that by the application of Thurin, that part of Hanssen's constitutional argument fails - the Tribunal will necessarily enter into a determination of the merits of Hanssen's claim.[33]
3. Initially, and in light of the views expressed, by way of obiter dicta, by Lee J in Oliver and in Mulley, the Attorney General submitted that it could not be said that the constitutional argument was incapable on its face of legal argument.[34] However, the Attorney General foreshadowed that if the reasoning of Lee J were held to be incorrect by the Victorian Court of Appeal it would be untenable for Hanssen to advance the constitutional argument.[35]
4. In light of the decision in Thurin, the Attorney General now submits that the Tribunal is bound to follow decisions of intermediate courts of appeal from other jurisdictions, unless plainly wrong, and that it cannot be said (and Hanssen does not contend) that the court's obiter observations in Thurin are plainly wrong.[36]
5. Furthermore, insofar as the constitutional argument is based on the views of Lee J in Oliver and in Mulley, the Attorney General drew the Tribunal's attention to the fact that in his more recent decision in Smith v National Australia Bank Limited,[37] Lee J acknowledged that unless and until an appellate court concluded otherwise, the mere fact that a party's ability to be sued was conferred by, and depends upon, the Corporations Act is insufficient to attract federal jurisdiction.[38]
6. The Attorney General therefore submitted that it was open to the Tribunal to find that 'whilst genuinely raised, the jurisdictional defence is incapable on its face of legal argument'.[39]
7. The Attorney General's submissions were adopted by the strata company.[40]

How is the Tribunal to form its opinion as to whether it has jurisdiction in this case?

1. The reasons of the plurality in Citta make clear that a tribunal's assessment of a party's claim or defence - for the purposes of forming its opinion as to whether that claim or defence brings the matter within federal jurisdiction - must not extend to an assessment of the prospects of success of the claim or defence.[41] The jurisdictional enquiry is limited in that way because in order to form a conclusion as to whether the claim or defence is likely to succeed, the tribunal would potentially be 'drawn down the forbidden path of judicially determining the merits of a matter'.[42] That analysis may, of itself, involve the exercise of federal jurisdiction by the tribunal.
2. However, nothing in the reasons of the plurality in Citta suggests that a tribunal is precluded from making any assessment at all of a claim or defence for the purpose of forming an opinion as to whether it has jurisdiction. On the contrary, there can be no doubt that a tribunal must have some basis for forming the opinion that a claim or defence brings a matter within federal jurisdiction, before it could conclude that its jurisdiction to determine the matter was thereby excluded. In the absence of some scrutiny of the claim or defence, spurious claims as to the existence of federal jurisdiction could result in the exclusion of a tribunal's jurisdiction to resolve a dispute, with the consequence that one of the parties to that dispute may be deprived of statutory remedies available only in the tribunal in question.
3. A mere assertion by a party that the proceedings in a tribunal are within federal jurisdiction - without any explanation of why that is so - could not suffice[43] because an assertion alone would not permit the tribunal to conclude that the claim or defence is not incapable of legal argument.
4. Similarly, in order to assess whether a claim or defence is not incapable of legal argument, as opposed to one which amounts to 'constitutional nonsense, or any other form of legal nonsense,'[44] a tribunal will need to ascertain that the claim or defence is of a nature that, on the present state of the law, is capable of supporting an argument that the proceeding falls within federal jurisdiction. Claims or defences which are unintelligible will not be capable of supporting such an argument. But nor will claims or defences which do not have any foundation in established legal principles as to the matters which fall within federal jurisdiction.
5. In some cases, it may be necessary for the tribunal to identify a factual basis capable of supporting the opinion that the claim or defence falls within federal jurisdiction. For example, in a claim which is said to involve diversity jurisdiction under s 75(iv) of the Constitution, if there is no information, on the face of the claim, which is capable of supporting an argument that the proceeding involves residents of different States, then the tribunal may form an opinion that the claim or defence said to bring the matter within federal jurisdiction is not capable of legal argument on that basis.[45]
6. However, the tribunal's enquiry does not go beyond identifying the existence of any factual basis for the claim or defence which is necessary to bring the matter within federal jurisdiction. The plurality in Citta made clear that the question for the tribunal is whether the claim or defence, on its face, is not incapable of legal argument.[46] That serves as a reminder that a tribunal may not engage in a legal or evidentiary analysis of the strength of the claim or defence, for the purpose of reaching its conclusion as to jurisdiction, because to do so would stray into an assessment of its merits.
7. The extent of a tribunal's enquiry as to its jurisdiction will necessarily depend, in part, on the nature of the claim or defence raised in the particular case. The extent of the enquiry is not susceptible to demarcation by a bright line. Perhaps all that can be said is that a tribunal must make such enquiry as is necessary to enable it to form an opinion as to whether a claim or defence said to bring a matter within federal jurisdiction is, on its face, not incapable of such a legal argument, while being careful to ensure that it does not stray into an assessment of the prospects of the claim or defence, on the merits.

Our opinion as to the existence of jurisdiction in this case

1. In the present case, Hanssen contends that it remains open to the Tribunal to conclude that its constitutional argument is not incapable of legal argument, notwithstanding the decision in Thurin. We do not accept that argument.
2. There is no doubt that the Tribunal is required to apply the law as enunciated by the High Court, and by any State court in the appellate structure above the Tribunal.[47] As a matter of sound administrative practice, and in the interests of consistency of decision making across Australian legal jurisdictions,[48] the Tribunal should also follow the decisions of other Australian superior and appellate courts where they are relevant to the Tribunal's decision-making.
3. Hanssen did not submit that we should not follow the decision in Thurin. Nor does Hanssen submit that Thurin is plainly wrong. It accepts that 'unless and until the High Court concludes differently, the Tribunal is, for practical purposes, bound to follow and apply the law as stated in Thurin when exercising its incidental jurisdiction to decide its own jurisdiction'.[49]
4. The constitutional argument advanced by Hanssen in these proceedings is, at its heart, not materially different from the question answered by the court in Thurin. Although the court's reasons in relation to the Corporations Act argument were, strictly speaking, obiter dicta, the decision in Thurin represents the most recent and authoritative consideration of this question by an Australian appellate court. We regard the decision in Thurin as representing the current state of the law in Australia in relation to the constitutional argument advanced in this case.
5. That being the case, in our view, the decision in Thurin compels the conclusion that the constitutional argument in this case is not capable of legal argument. It does not assist Hanssen's case to say that prior to Thurin the constitutional argument had some support, albeit by way of observations in obiter dicta in judgments of the Federal Court. Nor does it derive assistance from any of its other contentions (set out at [24] above) in relation to arguments advanced in Thurin and in other cases before Thurin was decided. None of those contentions have any merit.
6. As for Hanssen's submission that to form an opinion on the second plank of the constitutional argument would necessarily be to enter into a consideration of the merits, we do not accept that argument. As we understand the second plank of the constitutional argument, it is that the BSCRA Act is invalid to the extent that it purports to confer on the Commissioner the authority to determine any part of the dispute between the strata company and Hanssen, because Hanssen's legal status depends on the Corporations Act. As we have said, the premise of this second plank of Hanssen's argument is the constitutional argument. The outcome, insofar as the Tribunal's determination of its jurisdiction is concerned, must be the same: in light of Thurin, the constitutional argument is not capable of legal argument.
7. Finally, we reject Hanssen's submission that Thurin does not render the constitutional argument incapable of legal argument because the possibility exists that another appellate court, or the High Court, might one day take a different view of the law. In forming its opinion about the existence of jurisdiction, the Tribunal must proceed on the basis of the law as it is, rather than speculate as to how the law might develop in the future. The fact that decisions of intermediate courts of appeal are sometimes not followed by other courts of appeal, or are overruled by the High Court, does not assist Hanssen's case. Taken to its extreme, that reasoning would enable a party who advances a claim or defence which amounts to legal nonsense, in light of existing authority, to exclude the jurisdiction of a tribunal on the basis that that existing authority might be overruled at some future stage.

1. While we accept that it was genuinely made, in our opinion, it cannot be said that the constitutional argument is not incapable, on its face, of legal argument. Consequently, the Transfer Application is not within federal jurisdiction. The Dismissal Application must be dismissed.
2. While we will hear from the parties as to the terms of the order(s) which should be made in consequence of our opinion that the Tribunal has jurisdiction, the orders which we propose to make are:
   1. The respondent's application dated 10 January 2022 (seeking the dismissal of the proceeding) is dismissed.
   2. The matter is to be listed for a directions hearing on a date to be fixed, subject to the parties' availability, for further programming orders in respect of the application dated 26 November 2021 to transfer the proceeding to the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Under s 36 of the BSCRA Act, a building remedy order consists of an order that a person who carried out a regulated building service do one of the following: remedy the building service as specified in the order (s 36(1)(a)); pay an aggrieved person such costs of remedying the building service as the Commissioner or the Tribunal considers reasonable and specifies in the order (s 36(1)(b)); or pay to the aggrieved person a sum to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work (s 36(1)(c)).

[2] Under s 51 of the BSCRA Act, if the Commissioner is satisfied that a BRO issued under s 36(1)(a) of the Act has not been complied with by the person to whom it was given, the Commissioner may revoke the order and make a monetary order - that is, a building remedy order of the kind specified in s 36(1)(b) or (c) of the BSCRA Act. However, the Commissioner is unable to make an order requiring payment of an amount greater than $100,000 unless the respondent consents (s 37(2) and (3) BSCRA Act).

[3] Under s 55 of the BSCRA Act, if the Commissioner is dealing with a matter under s 51 of the Act, as was the case here, the Commissioner may, with the consent of the Tribunal, transfer that matter to the Tribunal. In making a monetary order, the Tribunal is not subject to the same monetary limits as the Commissioner (see s 38 of the BSCRA Act).

[4] Respondent's submissions dated 4 March 2022 at [9].

[5] Under s 76 of the Constitution, the Commonwealth Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under the Constitution or involving its interpretation (s 76(i)) or arising under any laws made by the Parliament (s 76(ii)).

[6] Respondent's submissions dated 4 March 2022 at [8].

[7] Respondent's submissions dated 8 November 2022 at [14].

[8] Cf Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (Citta) at [29].

[9] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476.

[13] Citta at [17]; see also at [63] and [65] (Edelman J).

[14] Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] (Martin CJ, Wheeler JA and Buss JA agreeing).

[15] Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 esp at [43], [50] (Kiefel CJ, Bell and Keane JJ), [68] - [69], [119] - [120] (Gageler J), [145] - [146] (Nettle J), [150] - [151], [187] - [188], [192] - [193] (Gordon J), [203] - [205], [252] - [257], [260] (Edelman J).

[17] Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226.

[18] Owners of Strata Plan 58161 and Hanssen Pty Ltd [2022] WASAT 77.

[19] Citta at [24], [25]; see also at [63], [65] (Edelman J).

[26] Respondent's submissions dated 8 November 2022 at [25].

[27] Respondent's submissions dated 8 November 2022 at [25].

[28] Respondent's submissions dated 8 November 2022 at [18] and Respondent's submissions dated 29 November 2022 at [17].

[29] Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [16].

[30] Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360, 378 - 379 at [55].

[31] Counsel for Hanssen referred to Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 96 ALJR 234; Seven Network v Cricket Australia (2021) 383 ALR 53, 66; and Thurin.

[32] Respondent's submissions dated 29 November 2022 at [20] - [27], referring to ACCC v Daniels Corporation International Pty Ltd [2001] FCA 244; (2001) 108 FCR 123 cf Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 54; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 and WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179 cf WorkPac Pty Ltd v Rossato (2021) 271 CLR 456.

[33] Respondent's submissions dated 29 November 2022 at [5] - [12].

[34] Attorney General's submissions dated 25 July 2022 at [43].

[35] Attorney General's submissions dated 25 July 2022 at [45].

[36] Attorney General's submissions dated 22 November 2022 at [14].

[37] Smith v National Australia Bank Limited [2022] FCA 1186.

[38] Attorney General's submissions dated 22 November 2022 at [15].

[39] Attorney General's submissions dated 22 November 2022 at [16].

[40] Applicant's supplementary submissions dated 22 November 2022 at [1].

[43] Cf Citta at [67] (Edelman J).

[45] Cf Citta at [65] (Edelman J).

[47] Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] (Martin CJ, Wheeler JA and Buss JA agreeing).

[48] Cf Mustac v Medical Board of Western Australia [2007] WASCA 128 at [37] (Martin CJ).

[49] Respondent's submissions 8 November 2022 at [12].