Anti-Discrimination Act 1977 (NSW)

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 11(1)(d), s 36(1), s 38, s 38(1)

Civil and Administrative Tribunal Act 2013 (NSW)

Commonwealth of Australia Constitution Act 1990 (Cth), s 75, s 75(iv), s 77(iii), Ch III

Interpretation Act 1984 (WA), s 7

Interpretation Act 1987 (NSW), s 31

Judiciary Act 1903 (Cth) s 39(2)

State Administrative Tribunal Act, s 15(1), s 16(1)

Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423

CGU Insurance v Blakeley [2016] HCA 2; (2016) 259 CLR 339

Cox v Journeaux [1934] HCA 72; (1934) 52 CLR 282

Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577

Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326

Fencott v Muller (1983) 152 CLR 570

Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138

Momcilovic v The Queen [2011] HCA 34

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

Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478

R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158

R v Macdonald; Ex parte Macdonald [1953] HCA 35; (1953) 88 CLR 197

R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372

Re the Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257

Rizeq v Western Australia [2017] HCA 23; (2017) 91 ALJR 707

Rochford v Dayes [1989] HCA 17; (1989) 84 ALR 405

The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290

Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446

Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621

1. This proceeding concerns a complaint (the Complaint) by the applicant, Mr Daniel Shuttleworth (Mr Shuttleworth) against the respondent, Mr Trevor Terry Pearson (Mr Pearson), which has been referred to the Tribunal by the Building Commissioner under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
2. The Complaint is a 'building service complaint' made under s 5(1) of the BSCRA Act in respect of building work carried out by Mr Pearson at 132A Star Street, Carlisle, Western Australia.
3. Upon receipt of the Complaint, a directions hearing was held and the Tribunal referred it to mediation; however that did not result in a resolution of the Complaint.
4. Subsequently, the Tribunal became aware of the decision of the High Court of Australia (High Court) in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423 (Burns v Corbett), which was delivered on 18 April 2018. That decision has ramifications regarding the jurisdiction of the Tribunal where the parties to a proceeding are residents of different States.
5. Both Mr Shuttleworth and Mr Pearson were residents of Western Australia when the building work was carried out and also when Mr Shuttleworth lodged the Complaint with the Building Commissioner.
6. However, when the Building Commissioner referred the Complaint to the Tribunal, the referral stated that Mr Shuttleworth 'is living interstate'.
7. That raised the question of whether or not the Tribunal now has jurisdiction to deal with the Complaint in light of the decision of the High Court in Burns v Corbett.

1. The Tribunal therefore decided to determine the following preliminary issue:

(a) Is Mr Shuttleworth a resident of a State other than the State of Western Australia?; and

(b) If (a) is answered in the affirmative, does the Tribunal have jurisdiction to deal with this matter, considering the decision of the High Court in Burns v Corbett?

1. The preliminary issue was listed for hearing and the parties were given the opportunity to provide to the Tribunal, and each other, witness statements and written submissions on the preliminary issue.

1. Mr Shuttleworth filed written submissions, but he did not file any witness statements, nor did he attend the hearing.
2. Mr Shuttleworth's submissions state that he is a resident of the State of Queensland.
3. The submissions then go on to state that Mr Shuttleworth considers that the Tribunal has jurisdiction to deal with this matter on the grounds that:
   • He is the owner of the building the subject of the Complaint made under s 5 of the BSCRA Act;
   • Entitlement to make a complaint under the BSCRA Act is 'bestowed' on him, as the owner of a building in Western Australia and is not dependent on his residency; and
   • The High Court decision in Burns v Corbett is irrelevant to that issue.
4. Mr Shuttleworth further states in his submissions that he does not intend to incur further costs preparing more detailed written submissions or attending the hearing of the preliminary issue and that he will abide by the Tribunal's determination on the preliminary issue.

1. Mr Pearson did not file any written submissions or witness statements, but he attended the hearing.
2. At the hearing Mr Pearson stated that he would like the Tribunal to be able to determine the Complaint, but he did not make any submissions in support of that position.

1. Section 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution) provides that the High Court shall have original jurisdiction (federal jurisdiction), relevantly, in 'all matters ... between residents of different States'.
2. Section 77(iii) of the Constitution empowers the Commonwealth Parliament to make laws investing any 'court of a State' with federal jurisdiction and s 39(2) of the Judiciary Act 1903 (Cth) does that, subject to various limitations.
3. Burns v Corbett concerned an appeal to the High Court from the decision of the Court of Appeal of the Supreme Court of New South Wales that the Civil and Administrative Tribunal of New South Wales (NCAT) did not have jurisdiction to hear and determine a dispute arising under the Anti-Discrimination Act 1977 (NSW) (AD Act) between a resident of New South Wales and a resident of another State; see Burns v Corbett at [14].
4. At all material times, the complainant, Mr Burns was a resident of New South Wales; the respondent to one of his complaints, Ms Corbett was a resident of Victoria; and the respondent to his other complaint, Mr Gaynor was a resident of Queensland; see Burns v Corbett at [7].
5. A majority of the High Court (Kiefel CJ, Bell, Keane and Gageler JJ) dismissed the appeal on the basis that:
   • The adjudicative authority in respect of the matters set out in s 75(iv) of the Constitution cannot be conferred on an organ of government, federal or State, other than a court referred to in Ch III of the Constitution; see Burns v Corbett at [45], [46], [64], [65], [69] and [121]. (Note: the courts referred to in Ch III of the Constitution are the High Court, federal courts and courts of a State, which are therefore the only courts on which federal jurisdiction can be conferred).
   • It was accepted by all parties that NCAT was not a court of a State; see Burns v Corbett at [27].
   • The provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which confer jurisdiction on NCAT are invalid to the extent that they purport to confer jurisdiction on NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. And, pursuant to s 31 of the Interpretation Act 1987 (NSW), those provisions are to be read down so that they do not confer jurisdiction on NCAT to determine a complaint under the AD Act where the complainant and the respondent to the complaint are 'residents of different States' within the meaning of s 75(iv) of the Constitution; see Burns v Corbett at [64], [119] and [120].
6. In summary, the decision in Burns v Corbett, was that:
   • The complaints by Mr Burns against Ms Corbett and Mr Gaynor were each a 'matter between residents of different States' for the purposes of s 75(iv) of the Constitution;
   • Those complaints were, therefore, within federal jurisdiction and could not be dealt with by NCAT, since it is not a 'court of a State' and, therefore, cannot exercise federal jurisdiction; and
   • The provisions of the NCAT Act which purport to confer jurisdiction on NCAT to deal with those complaints are to be read down so that they do not confer such jurisdiction.
7. The questions which arise from Burns v Corbett which are relevant to the determination of the preliminary issue in this proceeding are:

(1) Is the Complaint a 'matter' for the purposes of s 75(iv) of the Constitution?

(2) Are Mr Shuttleworth and Mr Pearson 'residents of different States' for the purposes of s 75(iv) of the Constitution?

(3) Is the Tribunal a court of a State for the purposes of s 75(iv) of the Constitution?

Is the Complaint a 'matter' for the purposes of s 75(iv) of the Constitution?

1. The High Court has considered the question of what a 'matter' is for the purposes of s 75(iv) of the Constitution in a number of cases.
2. In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265, the High Court stated that a 'matter' is not a legal proceeding; it is the subject matter in a legal proceeding in which there is some immediate right, duty or liability to be established by the determination of the Court.
3. In Fencott v Muller (1983) 152 CLR 570 (Fencott) at 603, the High Court stated that a 'matter' is a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy.
4. In CGU Insurance v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at 351 the High Court stated that 'matter' has two elements. Firstly, the subject matter itself and secondly, the concrete or adversarial nature of the dispute sufficient to give rise to a justiciable controversy.
5. In Burns v Corbett at [70], Gageler J referred to the above three cases and stated, succinctly, that a 'matter' encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated.
6. In Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 405 the High Court stated that the task of identification of the 'matter' is to be approached as a tripartite inquiry: first, the identification of the subject matter for determination in the proceeding; secondly, the identification of the right, duty or liability to be established in the proceeding; thirdly, the identification of the controversy between the parties to the proceeding for the quelling of which judicial power is invoked.
7. In Rizeq v Western Australia [2017] HCA 23; (2017) 91 ALJR 707 (Rizeq) at 719, the majority of the High Court, citing Fencott at 608, stated that the essential character of judicial power stems from the unique and essential function that judicial power performs by quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion.
8. In Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 at 491, the High Court stated that the controversy that the Court is being asked to determine must be genuine, and not an advisory opinion divorced from a controversy, and only a claim is necessary; a 'matter' can exist even though a right, duty or liability has not been, and may never be, established.
9. The Complaint is a 'building service complaint' under s 5(1) of the BSCRA Act.
10. Under s 5(1) of the BSCRA Act, a 'building service complaint' is a complaint made to the Building Commissioner 'about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory'.
11. A 'regulated building service' is any service or work specified in the definition of that term in s 3 of the BSCRA Act.
12. Under s 11(1)(d) of the BSCRA Act, the Building Commissioner may refer a building service complaint to the Tribunal for it to deal with under s 38 of the BSCRA Act.
13. Once a building service complaint has been referred to the Tribunal under s 11(1)(d) of the BSCRA Act it becomes a proceeding before the Tribunal that comes within its original jurisdiction under s 15(1) of the State Administrative Tribunal Act 2004 (SAT Act) and under s 16(1) of the SAT Act the Tribunal is to deal with the matter in accordance with the SAT Act and the BSCRA Act.
14. Under s 38(1) of the BSCRA Act the Tribunal may make a building remedy order if it is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory or decline to make a building remedy order.
15. Under s 36(1) of the BSCRA Act a building remedy order is an order that the person who carried out the regulated building service remedy it, or pay to the person who has made the complaint the costs of remedying it or an amount of compensation.
16. Applying the principles from the above cases, the Tribunal has decided that a building service complaint under the BSCRA Act, which has been referred to the Tribunal under s 11(1)(d) of the BSCRA Act, is a 'matter' for the purposes of s 75(iv) of the Constitution for the following reasons:

(1) When a building service complaint has been referred to the Tribunal under s 11(1)(d) of the BSCRA Act there is a concrete controversy between the person who has made the complaint (who becomes the applicant to the proceeding in the Tribunal) and the person against whom the complaint has been made (who becomes the respondent to the proceeding in the Tribunal).

(2) The subject matter of the proceeding is whether the regulated building service, about which the complaint has been made, is faulty or unsatisfactory, or has not been carried out in a proper and proficient manner.

(3) The liability sought to be established in the proceeding is the building remedy order sought by the applicant against the respondent.

(4) The controversy between the applicant and the respondent, which must be determined by the Tribunal (or to use the terminology in the above cases, adjudicated or quelled) is whether a building remedy order should be made against the respondent.

(5) The Tribunal exercises judicial power to determine the controversy which is before it by taking evidence, making findings on material questions of fact, applying the law and exercising the discretion given to it under s 38(1) of the BSCRA Act to either make, or decline to make, a building remedy order.

1. Therefore, because the Complaint is a building service complaint under the BSCRA Act, the Tribunal has decided that it is a 'matter' for the purposes of s 75(iv) of the Constitution.

Are Mr Shuttleworth and Mr Pearson 'residents of different States' for the purposes of s 75(iv) of the Constitution?

1. The Tribunal accepts Mr Shuttleworth's statement that he is a resident of Queensland, which determines the first part of the preliminary issue in the affirmative.
2. However, notwithstanding that statement, the Tribunal still needs to decide whether Mr Shuttleworth and Mr Pearson are 'residents of different States' for the purposes of s 75(iv) of the Constitution.
3. The High Court has considered the meaning of the words 'residents of different States' in s 75(iv) of the Constitution in a number of cases, from which the Tribunal draws the following principles:

(1) Only a natural person can be a resident; see The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290 (Howe's case) in which the High Court (Knox CJ, Gavan Duffy and Higgins JJ) held that the word 'residents' in s 75(iv) of the Constitution refers to natural persons only and not to artificial persons or corporations. The High Court refused to re­open that decision in Cox v Journeaux [1934] HCA 72; (1934) 52 CLR 282 (Cox) and again in Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22, in which the Court applied it.

(2) A natural person can only be a resident of one State at any time; see Howe's case at 296, where it was stated by Knox CJ and Gavin Duffy J that s 75(iv) of the Constitution seems to assume that a resident of one State cannot at the same time be a resident of another State.

(3) A resident is a natural person who resides permanently in a place, which is his or her home; see Howe's case where it was stated, by Knox CJ and Gavin Duffy J at 295 and by Higgins J at 327, that a resident is a natural person who resides permanently in a place. Also, in Howe's case it was stated by Isaacs J at 324, that a natural person is a resident of the State where, in fact, the nature of his residence shows it is his real home. And also, in Howe's case it was stated by Starke J at 327, that a resident is a natural person who lives, dwells and has his home in some place.

(4) A natural person can be a resident of a State after residing there for only a brief period of time; see R v Macdonald; Ex parte Macdonald [1953] HCA 35; (1953) 88 CLR 197 (a month), R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158 (five months) and R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323 (two and a half months).

(5) There must not be residents of the same State 'on both sides of the record'; see Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446. Mr Watson, who was a resident of Victoria, and Mr Godfrey, who was a resident of New South Wales, instituted an action in the High Court against Mr Cameron, who was a resident of New South Wales. The High Court (Knox CJ, Isaacs, Higgins, Gavan Duffy, Powers and Starke JJ) held that it did not have jurisdiction under s 75 of the Constitution to deal with the matter because it was not an action between residents of different States. Knox CJ stated, at 448, that where there is a resident of New South Wales on each side of the record, then it is impossible to say that the controversy is between residents of different States. Higgins J stated, at 449, that in his opinion, the plaintiff or plaintiffs must be resident in one State and the defendant or defendants must be resident in another State for the action to be 'between' residents of different States.

(6) If a corporation is a party in a proceeding it is precluded from being a matter 'between residents of different States'. In Cox an action was brought in the High Court by a natural person resident of Queensland against a number of natural persons, who were residents of Victoria and two companies which had been incorporated in Victoria. Dixon J ordered that the action was to be dismissed unless the plaintiff elected to proceed only against the defendants who were natural persons, applying the decision in Howe's case. The plaintiff appealed the decision of Dixon J to the Full Court (constituted by Gavan Duffy CJ, Starke, Evatt and McTiernan JJ), which dismissed the appeal. In Rochford v Dayes [1989] HCA 17; (1989) 84 ALR 405 (Rochford), in a proceeding in the High Court, the plaintiff and the first and second defendants were natural persons and residents respectively of New South Wales, Queensland and Western Australia and the third defendant was a corporation. In Rochford, at 406, Gaudron J noted that in Cox Dixon J, at first instance, held that the presence of a corporation on the record had the effect of denying to a proceeding otherwise between residents of different States the character of a matter 'between residents of different States' as those words are used in s 75(iv) of the Constitution and followed that decision, making an order that the action be dismissed unless the plaintiff elected to proceed only against the first and second respondents.

(7) The relevant date of a natural person's residence is the date the proceeding is commenced as opposed to the date of the conduct in question in the matter; see Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134].

(8) A proceeding may become a 'matter between residents of different States' after it has commenced and before it is determined. If that happens the matter will then fall within federal jurisdiction under s 75(iv) of the Constitution. 'Jurisdiction' is the authority to adjudicate or determine a matter, which is to be distinguished from the law that is applied in the exercise of that jurisdiction; see Rizeq at [8], [9], [49], [50], [51], [52], [127] and [128]. Therefore, although a proceeding, when it is commenced in a court or the Tribunal, may be within State jurisdiction, the authority to adjudicate under State jurisdiction will cease if the matter subsequently falls within federal jurisdiction.

1. Applying the above principles, the Tribunal finds that, for the purposes of s 75(iv) of the Constitution, Mr Shuttleworth is a resident of Queensland and Mr Pearson is a resident of Western Australia.
2. The Tribunal therefore finds that Mr Shuttleworth and Mr Pearson are 'residents of different States' for the purposes of s 75(iv) of the Constitution for the following reasons:

(1) Mr Shuttleworth and Mr Pearson are both natural persons and they are the only parties in this proceeding.

(2) Even though Mr Shuttleworth was, apparently, a resident of Western Australia when the building work was carried out by Mr Pearson and when he lodged the Complaint with the Building Commissioner, Mr Shuttleworth is now a resident of Queensland.

(3) Mr Shuttleworth is a resident in one State (Queensland) and Mr Pearson is a resident in another State (Western Australia) and, therefore, they are residents of different States.

Is the Tribunal a court of a State for the purposes of s 75(iv) of the Constitution?

1. The Western Australian Court of Appeal has held that the Tribunal is an administrative tribunal, not a court; see Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] and Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 at [26].
2. Also, in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [55], Allanson J stated that the Tribunal is not a court but an administrative tribunal, even when constituted by a judicial member. That view is consistent with the decision of the Federal Court in Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 where, at 584, Bowen CJ and Deane J refer to the appointment of Davies J as a Deputy President of the Administrative Appeals Tribunal as being a personal appointment, albeit that it was necessary that he hold one of a number of designated qualifications to be so appointed, which in his case was that he was a judge of the Federal Court.
3. On the basis of the above decisions the Tribunal has decided that it is not a court and therefore is not a 'court of a State' for the purposes of s 75(iv) of the Constitution.

1. The Complaint is a matter between residents of different States for the purposes of s 75(iv) of the Constitution.
2. The Complaint is therefore within federal jurisdiction and cannot be dealt with by the Tribunal since the Tribunal is not a court of a State and cannot exercise federal jurisdiction.
3. This conclusion has consequences for the provisions of the SAT Act and the BSCRA Act which purport to confer jurisdiction on the Tribunal to deal with the Complaint. Those provisions are invalid to the extent that they purport to confer jurisdiction on the Tribunal to determine a matter which falls within s 75(iv) of the Constitution.
4. Section 7 of the Interpretation Act 1984 (WA) provides as follows:
   1. Written laws to be construed subject to State's legislative power

Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.

1. Following the reasoning in Burns v Corbett at [64] and [119], the provisions of s 15(1) and s 16(1) of the SAT Act and s 38(1) of the BSCRA Act which confer jurisdiction on the Tribunal to deal with a building service complaint under the BSCRA Act are invalid to the extent that they purport to confer jurisdiction on the Tribunal to deal with the Complaint. However, to avoid that conclusion, those provisions can and should be read down, pursuant to s 7 of the Interpretation Act 1984 (WA), so that they do not confer jurisdiction on the Tribunal to determine the Complaint.
2. The first part of the preliminary issue is determined in the affirmative (Mr Shuttleworth is a resident of a State other than Western Australia) and the second part of the preliminary issue is determined in the negative (the Tribunal does not have jurisdiction to deal with this matter).
3. The Tribunal will, therefore, make the following orders.

1. The Tribunal has determined, as a preliminary issue, that the Tribunal does not have jurisdiction to deal with the complaint which has been referred to it by the Building Commissioner under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by reason of s 75(iv) of the Commonwealth of Australia Constitution Act 1900 (Cth).
2. The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as misconceived.

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