Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd

Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd - [2006] NSWCA 185 - NSWCA 2006 case summary — Zoe

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Abebe v Commonwealth (1999) 197 CLR 510 Ammann v Wegener (1972) 129 CLR 415 Aston v Irvine (1955) 92 CLR 353 Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557 Attorney-General v British Broadcasting Corporation [1981] AC 303 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Baker v The Queen (2004) 78 ALJR 1483 Batistatos v Newcastle City Council [2006] HCA 27 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 Brownlee v The Queen (2001) 207 CLR 278 Cheatle v The Queen (1993) 177 CLR 541 Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 Commonwealth v Mewett (1997) 191 CLR 471 Commonwealth v Wood (2006) 148 FCR 276 Dalton v NSW Crime Commission (2006) 80 ALJR 860 Ex parte Coorey (1945) 45 SR (NSW) 287 Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 Gould v Brown (1998) 193 CLR 346 Harris v Caladine (1991) 172 CLR 84 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 CASES CITED: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Kotsis v Kotsis (1971) 122 CLR 69 Le Mesurier v Connor (1929) 42 CLR 481 Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 Newman v A (1992) 16 Fam LR 209 Ng v The Queen (2003) 217 CLR 521 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 P v P (1994) 181 CLR 583 The Queen v Davison (1954) 90 CLR 353 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 Radio 2UE Sydney Pty Ltd v Burns [2005] NSWADTAP 69 Re Macks; Ex parte Saint (2000) 204 CLR 158 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 Tana v Baxter (1986) 160 CLR 572 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434

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Thursday 13 July 2006 TRUST COMPANY OF AUSTRALIA LIMITED (trading as Stockland Property Management) v SKIWING PTY LIMITED (t/as Café Tiffany's) Judgment 1 SPIGELMAN CJ: Skiwing Pty Limited ("Skiwing") conducts a café in the Stockland Imperial Arcade in the central business district of Sydney as lessee from the owner, Trust Company of Australia Limited ("Stockland"). Skiwing entered a new lease, with effect from May 2000 for a period of seven years. 2 Shortly after the new lease came into effect a series of disputes emerged between Skiwing and Stockland which led Skiwing to make three separate claims in the Retail Leases Division of the Administrative Decisions Tribunal. It was substantially successful with respect to two of the claims in the hearing at first instance before the Tribunal. Stockland successfully appealed to an Appeal Panel with respect to the matters decided against it at first instance. However, the Appeal Panel remitted certain other matters for further consideration by the Tribunal. 3 For a period of approximately six months between October 2001 and April 2002, Stockland pursued a possible redevelopment of the Imperial Arcade which would necessitate the relocation of the café conducted by Skiwing. Over the course of this period it issued three relocation notices pursuant to the Retail Leases Act 1994 to Skiwing. Prior to and during the whole of this period a substantial number of vacancies existed in the Imperial Arcade. As a result customer traffic in the Arcade declined and the business of Skiwing was adversely affected. This gave rise to what has been described in the proceedings as the relocation or disturbance of trading claim. 4 Prior to the renewal of the lease in 2000 and until April 2002 Skiwing was actively pursuing, with Stockland's approval, a development application with the Council of the City of Sydney which would enable it to extend its premises by the construction of a balcony over a pedestrian mall in the Pitt Street frontage of the Imperial Arcade over land owned by the Council. Eventually, Stockland withdrew its support for the project. This has been referred to in the proceedings as the balcony claim. 5 The Appeal Panel overturned the first instance finding in favour of Skiwing on both the relocation or disturbance of trading and the balcony claim. However, with respect to each of these claims Skiwing had sought to rely, in the alternative, on s52 of the Trade Practices Act 1974 (Cth). At first instance, the Tribunal held that it had no jurisdiction under that Act. 6 The Appeal Panel decided that the Tribunal did have jurisdiction to hear a claim for damages for alleged breaches of s52 of the Trade Practices Act. Stockland appeals from this decision. With respect to this issue, which raised a constitutional question, both the Attorney-General of the Commonwealth of Australia and the Attorney General of New South Wales have intervened and submitted to the Court that the Tribunal does not have jurisdiction under the Trade Practices Act. 7 The Appeal Panel also remitted for further consideration a claim by Skiwing for compensation under s34 of the Retail Leases Act 1994. At first instance the Tribunal refused to permit an amendment to the proceedings by the addition of the claim under s34. Stockland appeals from this decision. The interveners made no submissions on this aspect of the appeal. 8 In separate proceedings, Skiwing appeals from the rejection of its relocation or disturbance of trading claim and of its balcony claim. That appeal will be the subject of a separate judgment.

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Jurisdiction under the Trade Practices Act 9 The Appeal Panel held that it had jurisdiction to consider a claim for contravention of s52 of the Trade Practices Act on the basis of the express conferral of jurisdiction in s86(2) of that Act which provides: "86(2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under … Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission." 10 The Tribunal held that it was a "court of the State" and, accordingly, was invested with jurisdiction under the Act. 11 In a subsequent judgment, Radio 2UE Sydney Pty Ltd v Burns [2005] NSWADTAP 69, a differently constituted Appeal Panel determined, similarly, that the Tribunal was a court within the meaning of s39(2) of the Judiciary Act 1903 (Cth) which provides, relevantly: "39(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it …" 12 Although Radio 2UE was concerned with the Equal Opportunity Division of the Tribunal, the reasoning of the Appeal Panel in that case is applicable to the Retail Leases Division. 13 Section 86(2) of the Trade Practices Act invokes, in terms, the full extent of the constitutional head of power of the Commonwealth in s77(iii) of the Constitution, which provides: "77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws: … (iii) investing any court of a State with federal jurisdiction." 14 Amongst the matters referred to in s76 of the Constitution is a matter arising under a law made by the Commonwealth Parliament, such as the Trade Practices Act. 15 It is clear from the terminology adopted by the Commonwealth Parliament in s86(2) of the Trade Practices Act, that the Parliament intended to confer jurisdiction under that Act upon every institution of each state which answers the description of a "court of a State" in s77(iii) of the Constitution. (C/f, with regard to the parallel provisions of s39(2) of the Judiciary Act 1903, Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 at 505.) Accordingly, it is necessary to determine the scope of the constitutional concept of a "court of a State" in order to determine the meaning of s86(2) of the Trade Practices Act. 16 The text and structure of the Constitution must be the starting point of the process of interpretation. However, the common law concept of a "court" in Australian practice provides the background to the adoption of the word in the Constitution. (See Enid Campbell "What are Courts of Law?" (1998) Uni of Tas L Rev 19; Graeme Hill "State Administrative Tribunals and the Constitutional Definition of a 'Court'" (2006) 13 A J Admin L 103.) 17 It is well established on the authorities that the word "court" has a protean quality and takes its meaning from its context. Various forms of quasi-judicial tribunals will fall within the concept of a "court" as that word is used in particular statutes. In the present case the statute has a constitutional overlay.

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Is the Tribunal a 'Court'? 18 In Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282, this Court held that the Workers Compensation Commission of New South Wales was not a "court of a State" for the purposes of s77(iii) of the Constitution. Ipp JA, with whom Handley JA and I agreed, set out two lists of aspects of the legislative scheme there under consideration: one list of matters supporting the conclusion that the Commission was a court and the other list supporting the opposite conclusion. A final judgment was made by balancing the two sets of indicia. (A similar approach has been adopted in other cases. See e.g. P v P (1994) 181 CLR 583 at 633-635 per McHugh J.) The two lists under the ADT Act and the Retail Leases Act differ from those considered in Orellana-Fuentes, although there is a substantial overlap. 19 The Appeal Panel in the present case, as in the Radio 2UE case, gave determinative weight to the proposition that, at least in the case of the Retail Leases Division and the Equal Opportunity Division, the Tribunal or Division was exercising judicial power. That consideration is not entitled to determinative weight, particularly where, as here, the issue turns on the exercise of the judicial power of the Commonwealth, a narrower concept than judicial power as generally understood. 20 As Ipp JA said in Orellana-Fuentes supra: "[39] … There are many institutions that exercise judicial powers but are well recognised not to be courts." 21 The exercise of judicial power is a necessary but not a sufficient condition for the characterisation of a decision-making body as a court, even in a context where there is no constitutional overlay. Furthermore, many powers may be either judicial or executive and their classification may depend on the nature of the body which exercises them. Such powers are neutral as indicia for the characterisation of the decision-maker. 22 In Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, Viscount Dunedin, delivering the advice of the Privy Council on appeal from the High Court of Australia, said at 543-544: "The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial powers … In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a court in the strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subjects; (5) Nor because there is an appeal to a court; (6) Nor because it is a body to which a matter is referred by another body." 23 In Attorney-General v British Broadcasting Corporation [1981] AC 303 at 348, Lord Edmund-Davies added a list of further matters which were similarly not decisive: "(1) The fact that the tribunal is called a "court … (2) The necessity of sitting in public. (3) The fact that the tribunal has power to administer oath and hear evidence on oath. (4) The fact that the prerogative writs may issue in relation to the tribunal's proceedings. (5) The fact that absolute privilege against an action for defamation protects those participating in its proceedings."

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(See also his Honour's observations at 178-179, applied in R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 8. See also The Queen v Davison (1954) 90 CLR 353 at 370-371, 377, 384, 388.) 25 The Tribunal is a statutory body established by the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). It has functions conferred upon it both by that Act and certain other Acts including, relevantly, the Retail Leases Act 1994. The Tribunal exercises its functions by sitting in a number of distinct Divisions, for which the ADT Act makes provision. The relevant division for present purposes is the Retail Leases Division, the composition and functions of which are set out in Pt 3B of Sch 2 of the ADT Act. 26 Indicia in the ADT Act which operate in favour of the Tribunal being regarded as a "court of a State" (c/f Orellana-Fuentes supra at [39]-[40]) include: · The Tribunal exercises the judicial power of the State in the performance of a number of its statutory functions, including under the Retail Leases Act. · The President must be a judge and other judges may be appointed (s12(1)(a), s17(1) and s14). · Deputy Presidents and non-presidential judicial members must either have held judicial office or be legal practitioners of seven years standing (s12(1)(b) and (c) and s17(2)). · The Tribunal is expressed to have a "jurisdiction" (s37 and s38). · The Tribunal's procedure is expressed in terms of a "parties to proceedings" (s67 et seq). · The Tribunal may compel a person to attend to give evidence or produce documents (s84). · The Tribunal may examine witnesses and compel answers (s83). · The Tribunal may award costs (s88). · The Tribunal may make rules in relation to its practice and procedure (s90). · There is a right of appeal from an Appeal Panel of the Tribunal to the Supreme Court on a question of law (s119). · A legal practitioner or witness appearing at the Tribunal has the same protection and immunity as if appearing in the Supreme Court (s137). · An order for payment of money, other than penalty, upon certification by the Registrar, may be filed in a court and operates as a judgment of that court for a debt of that amount (s82). · A penalty ordered to be paid may be registered in a court as a judgment debt and is enforceable accordingly (s82A).

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(As to the last two bullet points, see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.) 27 Indicia operating against the proposition that the Tribunal is a "court of a State" (c/f Orellana-Fuentes supra at [42]-[51]) include: · The Tribunal is not called a court. · The members of the Tribunal are appointed for a renewable term of three years (Sch 3 cl 2 and cl 8(1)(b)). · Non-judicial members do not have to have legal qualifications (s13(2) and s17(3) and c/f Orellana-Fuentes at [43]). · Non-presidential judicial members and non-judicial members are appointed by the Minister. · Judicial officers may be appointed to act as a member by the President (s14 and c/f Orellana-Fuentes at [42]). · A substantial proportion, indeed on the material before the Court the majority, of the proceedings in the Tribunal do not involve the exercise of judicial power. · In merits review cases, the Tribunal is required to give effect to government policy (s64). · A member, other than the President, may be removed by the Governor for incapacity, incompetence or misbehaviour (Sch 3 cl 8(2)). · A Divisional Head may be removed from that office by the Governor (s16(2)(a)). · The Tribunal must refer any issue of contempt to the Supreme Court (s131). · The Tribunal has no express power to prevent abuse of its process (c/f Batistatos v Newcastle City Council [2006] HCA 27). · The ADT Act contains no provision for enforcement of an order of the Tribunal, other than an order for payment of money under s82 and s82A. It appears that such orders can only be enforced by contempt proceedings in the Supreme Court. · Proceedings for an offence against the ADT Act are instituted in the Local Court (s143). · An assessor, who is not a member of the Tribunal, may determine proceedings, if the parties consent to such a course or if the case belongs to a class prescribed by regulations (s34). 28 The two sets of considerations are more finely balanced than in Orellana-Fuentes. For example the role of arbitrators and medical specialists in the Workers Compensation Commission scheme is more extensive than the role of assessors under Pt 5 of Chapter 2 of the ADT Act. 29 For many statutory purposes, the Tribunal would have sufficient of the characteristics of a court to answer a statutory provision relating to "courts". However, the constitutional expression "court of a State", picked up in s86(2) of the Trade Practices Act, adopts a more stringent requirement than may be intended by the State Parliament when using the word "court" in a statute. The issue arises under a Commonwealth statute, which invokes s77(iii) of the Constitution.

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Is the Retail Leases Division a Court? 30 Alternatively, adopting the analysis of the Tribunal in Radio 2UE supra, the Respondent submitted that the Retail Leases Division should be considered separately and, if that were done, the Division should be found to be a "court of a State" within s86(2) of the Trade Practices Act. 31 This approach, if permissible, would remove several of the considerations to which I have referred above. First, the extent of the Tribunal's jurisdiction which does not involve the exercise of judicial power, is not material to the jurisdiction of the Retail Leases Division considered separately. Secondly, the assessor provisions of the ADT Act do not apply, by force of s77B of the Retail Leases Act. Thirdly, detailed provision is made for the transfer of proceedings between a court and the Tribunal by s76 and s76A of the Retail Leases Act. Finally, there are particular provisions for the constitution of the Tribunal. 32 Each Division is to be composed by the members assigned to the Division under Sch 2 of the ADT Act (see s20). The President is assigned to each Division and a Divisional Head is assigned to the Division to which he or she has been appointed (s21). 33 Relevantly for the Retail Leases Division, at the date of the decision under appeal: · The Division is comprised of the Divisional Head and such other members as may be assigned to the Division (Sch 2 Pt 3B cl 1(1)). · The Minister is required to assign to the Retail Leases Division at least one member who is a retired judge of the Supreme Court or the Federal Court or who has equivalent experience or qualifications, at least one member who has experience as a lessor or working on behalf of lessors and at least one member who has experience as a lessee or working on behalf of lessees (Pt 3B cl 1(3)). · For the purposes of exercising its functions under the Retail Leases Act in relation to retail tenancy claims, the Tribunal is to be constituted by either the Divisional Head or, if he or she is not available, by a judicial member and, if requested by a party, by two other members, one with experience of a lessor and the other with experience of a lessee (Pt 3B cl 3). · Special provision is made for the constitution of the Tribunal where an unconscionable conduct claim has been made. 34 There have been changes to these provisions in legislation enacted after the decision under appeal, which it is unnecessary to set out. (See Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557 esp at [29]-[30].) 35 In Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 the High Court determined that the words "court of a State" in s77(iii) of the Constitution, and "Courts of the States" in s39(2) of the Judiciary Act 1903, referred to the court as an institution, not to the persons of which it is composed. (See also Aston v Irvine (1955) 92 CLR 353 at 365.) Any conferral of federal jurisdiction must be on the court as such, not on another entity which does or may consist of persons who are otherwise members of a court. (Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1.) A conferral of jurisdiction expressed in terms of a conferral on a judge of a court is valid because jurisdiction is thereby conferred "on every judge as a member of the court … it is in his capacity to constitute the court that he is named". (Aston v Irving supra at p366.) 36 It is not, in my opinion, permissible to treat the Retail Leases Division as if it were a separate organisation. The Retail Leases Division does not have the institutional quality identified in HCF and other cases. The relevant institution is the Tribunal. 37 The principal reason for this conclusion is that jurisdiction with respect to retail tenancy claims is conferred, in terms, on the Tribunal by s71 of the Retail Leases Act and the power to make orders in proceedings for such a claim is similarly conferred on the Tribunal by s72 of that Act. That this conferral is jurisdictional is expressly confirmed by s37 of the ADT Act. 38 In contrast, the statutory provision allocating such claims to the Retail Leases Division uses the language of administration, rather than judicial language. By s19 the Tribunal "is to exercise its functions in Divisions". By cl 2 of Sch 2 Pt 3B, the "functions of the Tribunal", in relation to the Retail Leases Act, "are allocated to" the Retail Leases Division. 39 It is also pertinent to note that persons are appointed to the Tribunal (ss13, 14, 15 and 17). However, they are "assigned" to a particular Division (s21). Again, the language is administrative not curial. 40 Furthermore, there is no institutional separation within the structure of the Tribunal. In all Divisions, there must be a Divisional Head, being the President or a Deputy President (s16). Members are assigned to the Division either by the Act, in the case of the President and the Divisional Head (s21); by the Minister (Sch 2 Pt 3B, cl 1(3)); or by the President (s21(3) and Sch 2 Pt 3B, cl 1(1)(b)). Significantly, the Act expressly envisages that a person may be appointed as Divisional Head of more than one Division (s16(1)) and a member may also be appointed to more than one Division (s21(3)). Pursuant to s21(3), the President may reassign a member from one Division to another. 41 Similarly, the organisation of the operations of the Tribunal is integrated. The President is empowered to direct the business of the Tribunal (s25). The Registrar and staff are employed for that purpose (see s28). 42 One consideration that does suggest a separate institutional quality for the Retail Leases Division is the express provision made in s76 and s76A of the Retail Leases Act for the transfer of proceedings between the Tribunal and a court. Nevertheless, in each case, references are to the Tribunal, not to the Division. 43 In any event, for the reasons set out below, it would not matter if the Retail Leases Division were to be regarded as relevantly separate.

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A Constitutional Expression 44 The words "court of a State" must be understood as a constitutional expression. (C/f Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 141 re "Supreme Court" in s73; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [19] re the writs referred to in s75(v); Dalton v NSW Crime Commission (2006) 80 ALJR 860 at [34] re "process" in s51(xxiv); Brownlee v The Queen (2001) 207 CLR 278 at [7], [33] re "trial by jury" in s80.) The reference to "the courts of the States" in s51(xxiv) may involve different considerations. (See Ammann v Wegener (1972) 129 CLR 415 at 442.) 45 In s71 of the Constitution, the words "in such of the courts as it invests with federal jurisdiction" make it clear that a "court of a State", within s77(iii), like every federal court created by the Parliament, exercises the judicial power of the Commonwealth. 46 The Commonwealth Parliament may, pursuant to s77(iii), confer jurisdiction upon state courts without any approval of the States. (See Gould v Brown (1998) 193 CLR 346 at [186], [201].) This constitutional power forms part of the integrated Australian judicial system for which the Constitution provides. This concept of an integrated system, originally advanced by Gaudron J and Gummow J, has emerged as a fundamental consideration in contemporary Ch III jurisprudence. (See Kable supra at 101, 102, 103, 137-138. 143; Commonwealth v Mewett (1997) 191 CLR 471 at 524-525; Abebe v Commonwealth (1999) 197 CLR 510 at 558-559; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [110]; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [34], [124], [135], [137]; Re Macks; Ex parte Saint (2000) 204 CLR 158 at [252], [292], [298], [309]; Baker v The Queen (2004) 78 ALJR 1483 at [5], [57], [82]; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at [15], [36], [137], [153]; Dalton supra at [69].) 47 This integrated judicial system, sometimes called an integrated judicature, carries with it positive and negative constitutional requirements which will emerge in the case law. However, the very concept of an integrated system requires a high degree of similarity in the fundamental institutional characteristics of the component parts of that system. Similarity is not, however, identity. For example, it is well established that a "court of a State" within s77(iii) can exercise non-judicial powers of a kind that could not be exercised by a federal court. 48 However, there are elements which are fundamental, in the sense that their presence or absence will affect the institutional integrity of the relevant tribunal as a "court of a State". (See e.g. Fardon supra at [15], [23], [37], [41], [101]-[102].) Accordingly, such a court must "be and appear to be an independent and impartial tribunal". (North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [29].) 49 The Solicitor General for the Commonwealth relied on Bradley for the proposition that in order to be a "court of a State" within s77(iii), the State statute must provide sufficient guarantees that the tribunal is, and appears to be, independent and impartial. For present purposes it is sufficient to conclude that, in order for federal jurisdiction to be permissibly conferred upon it, a "court of a State" must - exclusively, or at least predominantly - be constituted by judges. 50 That does not mean that a tribunal must be called a court, or that the judicial officers must be called judges, rather than, say, "magistrates". The process of characterisation involves a matter of substance, not form. (See Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 444.3, 451.9; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 512C, 515F.) 51 Nevertheless, the use or absence of the word "court" in the constitutive statute is indicative. (See e.g. Tana v Baxter (1986) 160 CLR 572 at 581-582; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 at 175.7.) 52 In order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law. (See by way of comparison Attorney General v British Broadcasting Corporation supra at 359-360 per Lord Scarman.) One aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say predominantly, of judges. 53 With respect to the constitutional expression "trial … by jury", the High Court has said: "[W]hilst the requirement in s80 of a trial 'by jury' is referable to that institution as understood at common law at the time of federation, it is the essential features of that institution which have what might be called a constitutionally entrenched status. … [T]hose essential features are to be discerned with regard to the purpose which s80 was intended to serve and to the constant evolution, before and since federation, of the characteristics and incidents of a jury trial."

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Ng v The Queen (2003) 217 CLR 521 at [9] applying Brownlee v The Queen (2001) 207 CLR 278 esp at [6]-[7], [21]-[22], [33]-[34], [52]-[57]. The reference to "essential features" was first used by O'Connor J in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375 and applied to s80 in the joint judgment in Cheatle v The Queen (1993) 177 CLR 541 at 549, 560. 54 The passage in Ng is, in my opinion, equally applicable to the constitutional expression "court of a State" in s77(iii). A similar approach, referring to "essential features", and allowing for "subsequent development" after the date of federation, was also applied to the constitutional writs in s75(v). See Ex parte Aala supra at [24]-[25] and [34]. 55 A significant indicator of the content of the constitutional expression "court of a State" is found in s79 of the Constitution which provides: "79 The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes." 56 Section 79 reflects the history of common law courts where proceedings at first instance, not only appeals, had been heard by a number of judges sitting in banc. 57 Section 72 of the Constitution assumes that a federal court will be composed of judges, when it commences: "72 The Justices of the High Court and of the other courts created by the Parliament: …" 58 Similarly, s79 assumes that a "court of a State", like any other court exercising the judicial power of the Commonwealth, will be composed of "judges". 59 As suggested by s79 of the Constitution, it is, in my opinion, an essential feature of a court, as that word is used in Chapter III, that it be an institution composed of judges. (See, e.g. British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 at 444; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 116; The Queen v Davison (1954) 90 CLR 353 at 365.2; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270; Harris v Caladine (1991) 172 CLR 84 at 94, 108, 116, 121.) 60 In Le Mesurier v Connor (1929) 42 CLR 481, when considering the meaning of the expression "court of a State" in s77(iii), (see at p510.6; p511.6), Isaacs J said at p511.2: "A Court consists, then, of the Judges, and of them only." 61 To similar effect is the observation of Jordan CJ, referring to a new federal court, in Ex parte Coorey (1945) 45 SR (NSW) 287 at 302 (et seq): "The essential factor which brings the new court into actual existence as an operative entity is the appointment of a Judge or Judges." 62 In Kotsis v Kotsis (1971) 122 CLR 69 at 91, Windeyer J said that the word "court" in s77(iii) means "an existing institution, an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions". This definition was adopted in HCF at 60 per Mason J and in Harris v Caladine supra at 92 per Mason CJ and Deane J It was also quoted by Gibbs CJ in HCF at p58. Windeyer J's focus on an "institution … consisting of judges" should be regarded as authoritative. 63 The powers of a court, including the judicial power of the Commonwealth, may be exercised by the non-judicial officers of a court. (See HCF supra, Harris v Caladine supra.) However, the performance of such functions, in the case of a federal court must be subject to effective control by judges. (See Harris v Caladine at 94, 95, 121-122, 149.) The Full Court of the Supreme Court of Western Australia has applied this principle, in my view correctly, to a State court exercising federal jurisdiction. (See Newman v A (1992) 16 Fam LR 209 esp at 211, 215.) 64 Restrictions on the power of delegation must exist before an institution can "properly be described as a court" (per Gaudron J in Harris v Caladine at 149), or before it can "properly be said that, as a practical as well as a theoretical matter, the judges constitute the court" (at 95 per Mason CJ and Deane J). Some such restriction was, and is, an essential feature of a "court of a State", within s77(iii). 65 The membership of the Tribunal, or of the Retail Leases Division if it were appropriate to consider it separately, is not predominantly composed of judges. The Tribunal is not a "court of a State" within s86(2) of the Trade Practices Act. 66 I would have reached the same conclusion if I had engaged in the process of balancing the two lists of considerations in the way I have identified above. However, the constitutional requirement is, in the context of Commonwealth legislation, entitled to primacy. 67 My above analysis is not consistent with the reasoning of Heerey J in Commonwealth v Wood (2006) 148 FCR 276. His Honour does not consider the constitutional case law in the way I have done. 68 In the course of considering the weight to be given to the absence of security of tenure Heerey J said: "[72] In Bradley at [35]-[38] McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ pointed out that, until quite recent times in Australia, State and Territory summary courts have been constituted by members of the public service and subject to the regulation and discipline inherent in that position. One might add that this circumstance is explicitly recognised in s 39(2)(d) of the Judiciary Act . The federal jurisdiction of a court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate or "some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction". At the time the Judiciary Act was passed, such magistrates would have been salaried officials, as distinct from honorary justices of the peace, and members of their State public service, with nothing like Act of Settlement tenure. (And, as late as the 1970s Stipendiary and Police Magistrates in some States were not required to be lawyers.) Moreover, the fact that Parliament thought it necessary to impose such a condition suggests that at the time of the drafting of the Constitution a few years earlier it was contemplated that even honorary justices, who had no security of tenure at all, would, in the absence of such a condition, constitute a court of a State." 69 As I have noted above, the meaning of a constitutional expression is not fixed as at 1900, save with respect to essential features. Institutions referred to in the Constitution had, to the knowledge of the drafters, developed and changed over time, were continuing to develop at the time of federation and were expected to continue to develop thereafter. It may well be that a magistrates' court composed of persons who held such office in 1900 would no longer be regarded as a "court of a State" within s77(iii), just as a jury which excluded women would no longer satisfy the requirements of s80. (See Cheatle supra at 560-561.) 70 The appeal should be allowed.

[43]

Section 34 of the Retail Leases Act 71 The second matter which is the subject of the appeal by Stockland is the determination by the Appeal Panel that the relocation or disturbance of trading claim should be reconsidered by the Tribunal, insofar as it relies on an alleged breach of s34 of the Retail Leases Act. That section provides that each retail shop lease is "taken to provide" that, in certain circumstances, compensation for loss or damage suffered by a lessee is recoverable if the lessor does not rectify the matter after being requested to do so in writing. The circumstances which trigger the section include: "action that would inhibit or alter to a substantial extent the flow of customers to the shop" and unreasonable action that "has a significant adverse effect on trading of the lessee in the shop". In the course of the proceedings Skiwing alleged that Stockland had engaged in conduct which resulted in numerous other shops in the Arcade remaining vacant for substantial periods of time. This had effects of a character capable of triggering the application of s34. 72 There was a real issue as to whether or not a particular letter relied upon by Skiwing as constituting a request in writing for rectification, within the meaning of s34, could answer the statutory description. The relevant letter requested no more than a reduction of rent by reason of the vacancies. Neither the Tribunal at first instance nor the Appeal Panel found it necessary to determine whether this constituted a request for purposes of s34. Nor is it necessary for this Court to do so. 73 The first instance decision noted that the claim under s34 was raised in final submissions and only after all of the evidence had closed. The Tribunal member determined this issue in the following way: "[127] Skiwing argues that without the need for any further evidence, the Tribunal is in a position to determine this claim. [128] Stockland replies that this addition should be refused, that it would be unreasonable and prejudicial as it had not led evidence or cross-examined witnesses having regard to the elements of this section. [129] I am concerned to conclude this case which has taken a long time and, as noted, has diverted Mr Stojanoski from managing his business and embroiled him in the legal process. I have agreed he has a basis for claim on other grounds and will now proceed to determine the extent to which measurable loss has been caused on those bases. But should I also consider this s.34 claim? [130] While on the face of it, the evidence set out above may justify a finding of the elements within pars (b)-(d) of s.34, there are also difficulties facing such a claim; the section has an express requirement of a written request to rectify those matters and the only such written request relied on is a letter of 12 June 2002, Ex A p.59, set out above, well after Stockland had withdrawn its notices and set about trying to let the vacant shops. It may be that properly analysed, the written dispute of the relocation notices in November/December 2001 could also constitute such a request, but that is not clear cut at all and should really be subject to an opportunity for Stockland to respond. [131] In the interests of concluding the matter, and because there are real difficulties on the evidence as to the necessary request in writing required by s.34, I have decided not to entertain the s.34 claim. 74 The Appeal Panel dealt with this matter in short compass in the following passage: "[263] The Tribunal decided 'not to entertain this claim', because in its view there were other grounds entitling Skiwing to compensation and because Stockland had not had an opportunity to bring forward evidence relating to it. The claim had been included in Skiwing's original application to the Tribunal, but had been omitted from later versions. It had been reinstated only after the parties had closed their cases, on account of the Tribunal's decision that it had no jurisdiction under the TP Act. [264] In its Amended Notice of Contention, Skiwing alleged that the Tribunal had erred in not entertaining the claim based on s 34. The matter received no specific attention in the appeal hearing. [265] In our view, this aspect of the case should not be dealt with in the same manner as Skiwing's claims under the TP Act." 75 It is apparent that the Appeal Panel determined that the factors which led to the exercise by the Tribunal at first instance of a discretion not to permit a new claim to be raised at the end of the case were no longer operative. This turned on the fact that the matter would have to go back for further evidence, by reason of the necessity to hear evidence concerning the claims, under the Trade Practices Act. As the Appeal Panel had come to a different view with respect to the jurisdiction of the Tribunal under that Act, the evidence would need to be reopened for that purpose. Accordingly, the prejudice to Stockland from the matter being reopened which played so significant a role in the exercise of the discretion at first instance, would no longer exist. 76 This Court has determined that the Tribunal was correct at first instance in its decision that there was no jurisdiction to entertain the claim under the Trade Practices Act. Accordingly, the basis upon which the Appeal Panel decided to overturn the decision at first instance has been set aside. As no other ground for the Appeal Panel interfering with the exercise of a discretion of this character had been established, the Court should allow the Stockland appeal with respect to this ground. 77 Insofar as the decision of the Appeal Panel constituted an exercise of discretion, then the error of law with respect to the jurisdiction on the Trade Practices Act claim vitiated that exercise. In my opinion, this Court should restore the decision of the Tribunal member at first instance. He was correct to conclude that a claim of this character should not be raised at the time it was raised, in the circumstances of the case.

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Cases Cited (41)