[2018] NSWCA 254
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349
236 ALR 385
Burns v Corbett (2018) 265 CLR 304
[2018] HCA 15
Burns v Corbett
Gaynor v Burns (2017) 96 NSWLR 247
Source
Original judgment source is linked above.
Catchwords
[2018] NSWCA 254
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349236 ALR 385
Burns v Corbett (2018) 265 CLR 304[2018] HCA 15
Burns v CorbettGaynor v Burns (2017) 96 NSWLR 247[2017] NSWCA 3
CGU Insurance Ltd v Blakely (2016) 259 CLR 339[1998] HCA 6
Khatri v Price (1999) 95 FCR 287
[1999] FCA 1289
LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70
[2015] FCA 253
R v Coldham
Ex parte Australian Workers' Union (1983) 153 CLR 415 at 429
[1983] HCA 35
Re Wakim
ex parte McNally (1999) 198 CLR 511
[1999] HCA 27
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629
[2000] HCA 33
State of New South Wales v Kable (2013) 252 CLR 118
[2013] HCA 26
Sunol v Collier (2012) 81 NSWLR 619
[2012] NSWCA 14
The Queen v Murphy (1985) 158 CLR 596
[1985] HCA 50
Wilson v Brisbane
Judgment (12 paragraphs)
[1]
Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd ATF Chan & Naylor Parramatta Trust [2018] NSWCATAP 311
Yanunijarra Aboriginal Corp RNTBC v State of Western Australia [2020] FCAFC 64
Texts Cited: M J Leeming, Authority to Decide: The Law of Jurisdiction in Australia, 2nd ed, Federation Press 2020
Category: Principal judgment
Parties: Stephen Wilson (Appellant)
Chan & Naylor Parramatta Pty Ltd (First Respondent)
Civil and Administrative Tribunal of New South Wales (NCAT) (Second Respondent)
Attorney General for New South Wales (Intervener)
Representation: Counsel:
Self-represented (Appellant)
J Giles SC with D F Elliott (First Respondent)
M G Sexton SC with Z C F Heger (Intervener)
[2]
Solicitors:
N/a (Appellant)
Lander & Rogers (First Respondent)
Crown Solicitor's Office (Second Respondent and Intervener)
File Number(s): 2020/45454
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: [2019] NSWSC 1598
Date of Decision: 21 November 2019
Before: Harrison AsJ
File Number(s): 2019/83190; 2019/83349
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant appeals from a decision of an Associate Judge dismissing his applications for leave to appeal from, and judicial review of, a costs decision made by an Appeal Panel and a later costs decision made by a Senior Member of the NSW Civil and Administrative Tribunal.
The appellant commenced proceedings in Tribunal on 2 November 2015 and after a number of decisions, internal appeals, a transfer of the matter to the District Court then back to NCAT, and a number of amendments to the appellant's points of claim the proceedings were largely dismissed with a portion of the claim transferred to the Local Court. The proceedings were transferred to the Local Court after the Appeal Panel, affirming a holding of the Senior Member to the same effect, held that the Tribunal had no jurisdiction to hear the claim. It was held that the inclusion of a claim under Commonwealth legislation caused the proceedings to raise a 'matter' which would require the Tribunal to impermissibly exercise the judicial power of the Commonwealth should it proceed in the Tribunal.
As a consequence, the Appeal Panel ordered the appellant to pay the respondent's costs of the internal appeal. The Senior Member, who had delayed determining the question of costs until after the Appeal Panel handed down its decision, ordered that the appellant pay the respondent's costs of the proceedings in the tribunal since their transfer to the Tribunal from the District Court.
There were two issues on appeal:
1. (i) Whether the Appeal Panel and the Senior Member had power to make the costs orders in question;
2. (ii) If not, what orders should have been made.
[5]
The Court of Appeal (Macfarlan, Leeming and White JJA), by majority dismissed the appeal, holding:
[6]
The Court
The Tribunal had the authority to decide whether the claims made to it are within its limited jurisdiction. Its decision was anterior to the exercise of federal jurisdiction and grounded in its implied jurisdiction to determine whether it had authority to decide: [1] (Macfarlan JA); [12]-[17] (Leeming JA); [71]-[74] (White JA).
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415; [1983] HCA 35; Re Adams and Tax Agents' Board (1976) 12 ALR 239; Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14: applied.
[7]
Leeming JA (with whom Macfarlan JA agreed at [1])
The legislative competence of the State is not confined to those costs which are of and incidental to the jurisdictional issue. The implied constitutional limitation only circumscribes the legislative competence with respect to orders which are consequent upon or linked to the adjudication of aspects of the matter which are in federal jurisdiction: [4], [20], [25], [29]-[31].
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15; Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 Khatri v Price (1999) 95 FCR 287; [1999] FCA 1289: considered.
In the absence of such an adjudication, the fact that costs are referable to an issue which is in federal jurisdiction does not mean that an order in respect of those costs falls foul of the implied limitation on State legislative power: [27]-[28].
There was no purported determination of an aspect of the proceeding which was outside jurisdiction. The costs orders made by the Appeal Panel and the Senior Member were within power as the only determination was as to the anterior question of whether the Tribunal had authority to decide: [32].
[8]
White JA (dissenting in part)
The State's legislative competence does not extend to conferring power to award costs where the costs incurred are not of and incidental to the anterior question of jurisdiction: [75]-[82]. The parties' claims for costs referable to the substantive matter were part of the controversy which formed an aspect of the matter within federal jurisdiction: [83]-[85].
CGU Insurance Ltd v Blakely (2016) 259 CLR 339; [2016] HCA 2; Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15; Qantas Airways Limited v Lustig (2015) 228 FCR 148; [2015] FCA 253; Khatri v Price (1999) 95 FCR 287; [1999] FCA 1289: considered.
The order of the Appeal Panel that the appellant was to pay the costs of the appeal was within power as those costs were consequential on the exercise of the anterior jurisdiction to determine the Tribunals authority to decide: [86].
The costs order made by the Senior Member purports to award costs which were not costs of and incidental to the application to dismiss the proceeding for want of jurisdiction: [87]-[89]. To the extent the order awarded costs that were not consequential on the anterior question of jurisdiction it was beyond power as the Senior Member purportedly determined an aspect of the matter within federal jurisdiction: [85], [90].
[9]
Judgment
MACFARLAN JA: I agree with Leeming JA.
LEEMING JA: The regrettably lengthy procedural background has been reproduced by White JA, with whose reasons I substantially agree. I agree that Mr Wilson's appeal against the costs order made by the Appeal Panel must be dismissed. However, unlike White JA, I have concluded that Mr Wilson's appeal against the costs order made by NCAT constituted by Senior Member Wilson should also be dismissed.
Some proceedings commenced in NCAT, including those commenced by Mr Wilson, may not be determined on their merits for constitutional reasons. In such proceedings, any substantive orders NCAT might make are liable to be set aside for want of jurisdiction. However, the fact that the proceedings cannot be heard and determined on their merits by NCAT does not mean that NCAT is denied power to order Mr Wilson to pay the respondents' costs, in an appropriate case, of and incidental to the jurisdictional issue.
So far, I am in agreement with White JA. However, respectfully taking a slightly broader approach than his Honour, I consider that the implied limitation upon State legislative power does not confine the power to award costs of proceedings which are dismissed or removed for want of jurisdiction to the costs of and incidental to the jurisdictional issue. In an appropriate case, if an applicant has wrongly invoked NCAT's jurisdiction and has also otherwise so conducted himself or herself as to warrant a special costs order, then such costs may be ordered at the same time as the proceedings are dismissed. In my view, where the implied constitutional limitation bites is to prevent costs orders which are consequent upon or linked to the adjudication of aspects of the matter which are in federal jurisdiction.
If, say, the applicant had failed to obtain interlocutory relief before NCAT appreciated that the proceedings were outside its jurisdiction, and NCAT had ordered that the applicant pay the respondent's costs on that issue, the power to order costs would not be available and any order NCAT might make would be liable to be set aside. The granting or the refusal of interlocutory relief is part of the same "matter", jurisdiction in respect of which may not be conferred upon NCAT, and likewise the power to order costs as a consequence of determining that part of the matter is unavailable. But that does not preclude the order made in the present case by NCAT constituted by the Senior Member.
[10]
Course of proceedings in NCAT
The appellant commenced proceedings in the Tribunal on 2 November 2015. He sought an order that the respondent pay him $40,000. The form of application was not before us.
Details of the claim are contained in a decision of Senior Member, P Boyce, of 5 April 2016 (Wilson v Chan & Naylor Parramatta Pty Ltd [2016] NSWCATCD 20) summarily dismissing the application. The Tribunal there recorded that the appellant alleged that a Mr Nelson, who was a director of the respondent, referred him to a Mr Raiss for financial taxation advice and as a result of advice given by Mr Raiss, he caused a self-managed superannuation scheme to be established and a joint venture to be entered into between the trustee of the superannuation fund and the trustee of a property trust for the trustee of the property trust to buy land and enter into a contract for the construction of residential premises to be let to third parties. The operation of the trust was said to be in breach of requirements of the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation Industry (Supervision) Regulation 1994 (Cth).
Senior Member Boyce dismissed the application on the basis that any liability for wrong advice given in regard to compliance with the Superannuation Industry (Supervision) Act rested with parties other than the respondent (at [84]).
That decision was overturned on appeal to a differently constituted Appeal Panel on 3 November 2016 (Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236). The Appeal Panel remitted the proceeding to the Consumer and Commercial Division for determination according to law (at [40]).
In an affidavit of 2 August 2018 the respondent's solicitor deposed that a parallel set of proceedings was commenced in the Tribunal against four other respondents. The appellant sought leave to join additional respondents to the present proceeding (which had been given a new file number). He was directed to serve points of claim which he did on or about 14 December 2016. Those points of claim claimed damages against the respondent of $320,000 plus costs and interest. The proceedings were transferred to the District Court because the amount claimed was beyond the monetary jurisdiction of the Tribunal. On 8 September 2017 the proceedings were transferred back to the Tribunal after the appellant again amended his claim so as to seek damages of $29,975. There were further applications for the joinder of additional parties, but claims against additional parties were either not pursued or were discontinued or dismissed.
[11]
Consideration
There is no doubt that the NCAT Act purportedly conferred authority on the Tribunal to make the costs orders that are in issue on this appeal. Section 29 of the NCAT Act relevantly provides:
"29 General jurisdiction
(1) The Tribunal has general jurisdiction over a matter if -
(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and
(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings."
Section 4 provides:
"4 Definitions
(1) In this Act -
...
ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -
(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and
(b) a decision concerning the awarding of costs in proceedings."
The Appeal Panel, in the exercise of its internal appeal jurisdiction, had jurisdiction to make ancillary decisions as defined in s 4 (s 32(2)(a)).
Section 60 was a further source (as well as a limitation) on the Tribunal's authority to award costs. Section 60(2) provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Section 60(3) identifies matters to which the Tribunal may have regard in determining whether there are special circumstances warranting an award of costs.
The issue is not whether the NCAT Act, in its terms, authorised the Tribunal to order costs. The issue is as to the legislative competence of the State of New South Wales so to provide where the State has no legislative competence to confer federal jurisdiction on the Tribunal. The power conferred on the Tribunal by ss 4, 29, 32(2)(a) and 60 of the NCAT Act to order costs is as extensive as, but only as extensive as, the legislative competence of Parliament so to provide (Interpretation Act 1987 (NSW), s 31).
[12]
Amendments
19 February 2021 - [11(2)] - "Attorney General of New South Wales" changed to "Attorney General for New South Wales".
23 February 2021 - "(Emphasis added.)" deleted from end of quote at [79].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 February 2021
Parties
Applicant/Plaintiff:
Wilson
Respondent/Defendant:
Chan & Naylor Parramatta Pty Ltd
Legislation Cited (9)
Consumer Claims Act 1998(NSW)
Superannuation Industry (Supervision) Regulation 1994(Cth)
My reasons for those conclusions are elaborated below.
At times, the parties' written submissions were framed in terms of whether NCAT had power to make a "costs order" when proceedings were dismissed for want of jurisdiction or removed to another court pursuant to Pt 3A. As will be evident from what has been said already, that is too general a formulation of the question to resolve all aspects of the present appeal. It may be best immediately to give some examples of the ways in which costs orders consequent upon NCAT's lack of jurisdiction operate, in order to illustrate some of the distinctions:
1. a respondent promptly applies for proceedings to be dismissed for want of jurisdiction;
2. a respondent raises a number of defences, most going to the merits but also disputing the Tribunal's jurisdiction, all of which are determined at a single hearing;
3. a hearing proceeds in stages, and the applicant succeeds (say, on a question of liability) after the first hearing, and only then does a respondent raise a question of jurisdiction.
As White JA has explained, statute confers power to award costs in, or in relation to, proceedings. Section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) provides, subject to presently immaterial exceptions, that:
"The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs".
How does the scope of that broadly worded power operate in relation to proceedings which have been commenced contrary to the constitutional limitation upon the types of proceedings identified in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 which the New South Wales Legislature may authorise NCAT to determine?
I shall pass very lightly over one further potential complexity. A court or tribunal may lack jurisdiction for a variety of constitutional reasons. The precise constitutional basis for the absence of jurisdiction may very well matter, not least because it may affect the approach taken to reading down generally expressed provisions such as s 60(2). Thus, it may make a difference whether NCAT lacked jurisdiction because of an absence of legislative power, or because of the effect of inconsistent federal law, because in the latter case, State law is inoperative "to the extent of the inconsistency". The constitutional restriction in the present case is the inability on the part of the New South Wales Legislature to confer authority on NCAT to determine matters in federal jurisdiction, including matters between residents of two States (as held in Burns v Corbett) and matters arising under federal law.
Where an applicant commences proceedings which are outside NCAT's jurisdiction for the reasons identified in Burns v Corbett, then the range of orders which may be validly made by NCAT is highly circumscribed. NCAT may not exercise judicial power to determine any part of the justiciable controversy; to do so would be to exercise the judicial power of the Commonwealth and that it cannot do. NCAT could not, for example, determine following a hearing confined to the issue of liability whether or not a respondent was liable, for that would be to exercise judicial power in respect of part of the matter. That constitutional inhibition extends to orders for interlocutory relief, which are also part of the same "matter" (just as the committal for trial is part of the curial determination of charges in respect of federal offences: cf The Queen v Murphy (1985) 158 CLR 596 at 617-618; [1985] HCA 50). Instead:
1. the proceeding may be dismissed for want of jurisdiction;
2. the proceeding may alternatively be transferred to a court which has jurisdiction: Gaynor v Attorney General for New South Wales [2020] NSWCA 48 at [41]-[54], [86], [133]-[137], and
3. contrary to Mr Wilson's submission, NCAT may make an adverse costs order against the applicant.
In the case of a court, the position was described in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31]:
"[A]ll courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction. That power can be described as a court having jurisdiction to decide its own jurisdiction."
So too NCAT is authorised, by necessary implication, to determine whether claims made to it are within its limited jurisdiction. That authorisation extends to determining whether an applicant has purported to invoke NCAT's jurisdiction in proceedings which are constitutionally impermissible because they amount to a matter arising under a federal law. The implied limitation upon legislative power which prevents the New South Wales Legislature from authorising NCAT to determine such matters cannot prevent NCAT from determining whether an applicant purported to do something which is constitutionally impermissible. That is not contrary to the Constitution; rather, it vindicates the constitutional limitation.
Thus, as was explained in Gaynor v Attorney General (NSW), NCAT is under a duty to satisfy itself whether a claim made to it is within its limited authority: see at [22], [100], [131]. That duty carries with it authority to determine, either positively or negatively, whether it has jurisdiction to determine a claim. In deciding that question, NCAT is not exercising federal judicial power - even if it concludes that it lacks jurisdiction because the claim invokes federal jurisdiction. Rather, NCAT forms an opinion on whether the claim amounts to one invoking federal jurisdiction, and acts upon that opinion by dismissing the proceedings for want of jurisdiction, or transferring them to a court, if it is of the opinion that the claim is outside its jurisdiction.
I sought to explain why NCAT could determine whether a proceeding was within its limited authority without contravening the limitations identified in Burns v Corbett in Gaynor at [137]:
"NCAT will inevitably form a view as to whether the parties are residents of different States, and doing so may lead it to make an order. However, any such order will not be an exercise of the judicial power of the Commonwealth, even though it will be informed by its view of the limits of its own authority, in accordance with what was said in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 at [20]. There is a difference between an authoritative, binding determination of a dispute between the parties by the exercise of judicial power, and the expression of an opinion. In disputes between residents of different States such as the present, NCAT can only do the latter. But nothing in Chapter III can prevent a tribunal from forming an opinion as to the limits of its own authority. As Brennan J observed in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242, 'The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.'"
Of course, in an appropriate case there may be evidence adduced and submissions advanced on the question whether or not an originating process is within NCAT's limited jurisdiction. Those steps will involve the parties incurring costs. Such costs are undoubtedly "in relation to proceedings". They are directly related to the important "first duty" upon the Tribunal to determine whether or not it has jurisdiction to decide the proceedings.
For those reasons, I cannot accept Mr Wilson's submission that all orders made by NCAT in proceedings which NCAT lacks jurisdiction to determine are nullities and there is no power to order costs. This is wrong in principle and contrary to authority. Mr Wilson's submission ignores the important distinction between the anterior exercise of authority to determine the limits of the Tribunal's own authority, and the subsequent adjudication of an application on its merits. And it is contrary to what was held in Gaynor v Attorney General (NSW). It is also contrary to the reasoning in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [17] which distinguished between orders which dismissed for want of jurisdiction (which did not determine any matter brought under the cross-vesting legislation and which were valid) and orders which dismissed or upheld proceedings on their merits, which were invalidly made pursuant to the cross-vesting legislation. Section 60(2) extends to the award of costs in favour of a respondent who successfully contends that NCAT lacks jurisdiction to hear the substantive claim advanced by the applicant.
It may be that the Tribunal is satisfied (wrongly as it turns out) that it has jurisdiction, and makes orders in favour of an applicant who has (wrongly) invoked its jurisdiction. There might be orders for interlocutory relief, or declarations that the respondent is liable, and consequential costs orders. If the Tribunal were exercising judicial power when making those orders, then those orders would all be liable to be set aside. That is because there is a single Chapter III matter, and the orders would amount to the exercise of the judicial power of the Commonwealth, contrary to Burns v Corbett.
It will be seen, therefore, that there is an important difference between an order that an applicant pay the costs of and incidental to the question of NCAT's jurisdiction, and an order that an applicant pay the costs of his or her unsuccessful application for interlocutory relief. The former is not an exercise of the judicial power of the Commonwealth, because it is a consequence of the anterior determination that the proceeding is not within jurisdiction. The latter is a (purported) exercise of the judicial power of the Commonwealth.
However, the power as to costs which is available when a proceeding involving a claim under federal law is dismissed by NCAT is not in my opinion confined to the costs of and incidental to that jurisdictional issue. That view accords with what was said by Katz J in Khatri v Price (1999) 95 FCR 287; [1999] FCA 1289.
In the months preceding the High Court's decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27, Mr Khatri had successfully obtained orders for the examination of persons involved in the affairs of the company which had been wound up. Re Wakim overturned what had previously been held in litigation culminating in Gould v Brown (1998) 193 CLR 346; [1998] HCA 6 holding that the Corporations Law (which was a New South Wales law) could not authorise the Federal Court to appoint a liquidator to wind up a company. Mr Khatri nonetheless submitted that there was power to order costs in his favour. He relied on the power in s 43(1) of the Federal Court of Australia Act 1976 (Cth) "to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction)", and said that that extended even to cases such as the orders which had been made without jurisdiction (something which was only apparent after Re Wakim was delivered). That submission was rejected.
Katz J carefully addressed the various permutations which might arise, at [17]-[19]:
"As I construe s 43(1) of the Act, the 'proceedings' to which it first refers are the typical ones before this Court, namely, those in which the purported invocation of this Court's jurisdiction has been proper.
Then, to deal with those proceedings before it in which the only jurisdiction which the Court has actually exercised has been its limited jurisdiction to determine that it does not have the jurisdiction purportedly invoked, s 43(1) of the Act confers, by its parenthetical words, a jurisdiction to award costs in proceedings dismissed for want of jurisdiction. (Presumably, in cases where the Court has exercised the discretion to which I referred in [14] above, that jurisdiction to award costs in proceedings dismissed for want of jurisdiction is intended to extend, not only to the costs of the jurisdictional aspect of the case, but also to the costs resulting from the hearing of evidence and argument on issues which would have arisen in the proceeding if the Court had held that it did have the jurisdiction purportedly invoked.)
Section 43(1) of the Act, does not, however, confer upon this Court a jurisdiction to award costs in proceedings in which it has purported to exercise a non-existent jurisdiction. Not only do the parenthetical words in subs 43(1) not support, for the reasons which I have already given, Mr Khatri's argument, but their presence appears to me to militate against that argument, by providing the basis for an expressio unius argument to be made in connection with the construction of subs 43(1)."
It will be seen that Katz J distinguished three classes of case:
1. those in which the Court's jurisdiction was properly invoked;
2. those in which "the only jurisdiction which the Court has actually exercised has been its limited jurisdiction to determine that it does not have the jurisdiction purportedly invoked", and
3. those in which the Court had purported to exercise a non-existent jurisdiction.
Mr Khatri's application fell within the third class, and his Honour concluded that no order for costs could be made.
But what of the second class of case? Katz J said, obiter, and prefaced by "presumably", that where the proceedings were dismissed for want of jurisdiction, the power extended to costs not connected with the jurisdictional aspect.
I respectfully agree. Nothing turns on the absence from s 60 of the bracketed words in s 43 of the Federal Court of Australia Act "(including proceedings dismissed for want of jurisdiction)". The power in s 60(2) is expressed in broad terms, and is apt as a matter of construction to include any costs relating to the proceedings.
The mere fact that costs have been incurred in respect of an issue which if it had been determined would have been an exercise of the judicial power of the Commonwealth does not in my opinion mean that an order in respect of those costs falls foul of the implied limitation on State legislative power.
In my view, the limitation on power identified in Burns v Corbett operates more narrowly. If costs were incurred in respect of an issue which was purportedly determined by NCAT in the purported exercise of the judicial power of the Commonwealth, that determination could not validly sustain an exercise of the power to order costs. That incidentally is consistent with what was said in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3. Mr Burns (who had commenced proceedings against Mr Gaynor, a resident of Queensland), obtained a favourable costs order. In unusual procedural circumstances (where Mr Gaynor asked that his appeal from that order be dismissed), this Court dismissed the appeal noting that it would be "clear from the foregoing that the costs order made against Mr Gaynor by NCAT cannot be enforced": at [106]. The purported exercise of judicial power, contrary to the constitutional implication, cannot validly ground an exercise of power as to costs.
However, where there has not been a (purported) determination of any of the merits of the proceeding, and the only substantive determination by NCAT is that it lacks jurisdiction, then in accordance with the submissions advanced by the Solicitor-General, I see no reason to circumscribe the power in s 60 to the costs of and incidental to that determination. The power was exercised on the basis of the fact that costs had been incurred in connection with non-jurisdictional aspects of the proceeding, rather than the purported determination of non-jurisdictional aspects of the proceeding. This result accords with what was suggested in terms by Katz J in Khatri v Price in closely analogous circumstances. (It also accords with the costs orders made in Pezet v Pezet (1946) 47 SR (NSW) 45 at 51, Proust v Blake (1989) 17 NSWLR 267 at 272 and LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70; [2017] NSWCA 89 at [48], although it may be acknowledged that the absence of jurisdiction in those cases was not for constitutional reasons, and the reason the present appeal is not straightforward is that the constitutional limitation cuts into the generally worded conferral of power to order costs).
This distinction was raised during submissions:
"MACFARLAN JA: Mr Sexton, sorry to interrupt. Another way of reaching the same conclusion is perhaps to focus on characterising the nature of the costs order that's made and asking whether that is truly the exercise of federal jurisdiction because it's not an adjudication in any sense on the merits of a claim which falls within federal jurisdiction; it's, in effect, dealing with a situation where the Court's time has been wasted by bringing to it a matter in which it has no jurisdiction. It's not resolving anything that is of a federal character; it's just dealing with its own time and effort."
SEXTON: Well, I think we're trying to make that point, your Honour..."
Making an order for costs which extends to costs incurred in relation to non-jurisdictional issues, in cases where there has not been a purported exercise of a non-existent jurisdiction, does not contravene the implied limitation on power identified in Burns v Corbett, and consistently with s 31 of the Interpretation Act 1987 (NSW), s 60 is available in those circumstances.
The Senior Member declined to order costs for the period from 2 November 2015 until 7 September 2017. The order made by the Senior Member was that Mr Wilson pay the costs of the first respondent from 8 September 2017, and of the second respondent from 17 October 2017, as agreed or assessed on the ordinary basis, which is to say, for the period of some 9 months prior to the Senior Member dismissing the proceedings for want of jurisdiction. The order was made because she formed the view that Mr Wilson had conducted the proceedings in a way which unnecessarily disadvantaged the respondents, and had been responsible or prolonging unreasonably the time to complete the proceedings. The fact that the Senior Member made that assessment did not involve any exercise of the judicial power of the Commonwealth. The issue whether Mr Wilson's case based on federal law was or was not established remains undetermined. Thus I conclude that s 60 authorised those orders.
I propose that the appeal be dismissed, with costs.
WHITE JA: On 20 December 2018 an Appeal Panel of the NSW Civil and Administrative Tribunal ("the Tribunal" or "NCAT") ordered that proceedings pending in the Tribunal be transferred to the Local Court. The Appeal Panel ordered that the appellant pay the costs of the respondent of the appeal (Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd ATF Chan & Naylor Parramatta Trust [2018] NSWCATAP 311).
The internal appeal to the Appeal Panel was from a decision of a Senior Member of the Tribunal of 29 June 2018 (Ms L Wilson) dismissing the proceeding in the Tribunal for want of jurisdiction. The Appeal Panel did not deal with costs of the proceedings in the Tribunal other than the costs of the internal appeal. The Senior Member had directed that the parties provide written submissions if the respondent wished to make a costs application in respect of the dismissed proceedings. The respondent made such an application.
On 14 January 2019 the Senior Member ordered that the appellant pay the respondent's costs of the proceedings from 8 September 2017. The reasons for that decision are not on Caselaw, but are summarised at [58]-[62] below.
The Appeal Panel held that the appellant's claim in the Tribunal purportedly sought to invoke federal jurisdiction and the Tribunal had no authority to decide the claim which fell within federal judicial power (at [24]-[27]); (Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15).
The appellant sought leave to appeal against or judicial review of the costs orders of the Appeal Panel of 20 December 2018 and of the Senior Member of 14 January 2019. That application was dismissed by Harrison AsJ on 21 November 2019 (Wilson v Brisbane; Wilson v Chan & Naylor Parramatta Pty Ltd [2019] NSWSC 1598).
Mr Wilson sought leave to appeal to this Court from the orders of Harrison AsJ. On 15 April 2020 Leeming JA and I granted leave to appeal confined to the following questions:
"(a) did the Appeal Panel of NCAT have power to make order 3 of 20 December 2018 that the applicant pay the first respondent's costs of the appeal and did Senior Member L Wilson of NCAT have power to make order 1 of 14 January 2019 that the applicant pay the first respondent's costs of proceedings in NCAT from 8 September 2017 as agreed or assessed on the ordinary basis; and
(b) if there were no power to make those orders what orders should be made?"
(Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62)
The grant of leave did not extend to a consideration of the merits of the costs orders made in the Tribunal. The leave is confined to the question of the power of the Appeal Panel and of Senior Member L Wilson to make their respective costs orders.
That question was not raised in the hearing at first instance before Harrison AsJ. Nonetheless, we considered it appropriate to grant leave both because the issue is one of public importance and because the validity of those orders would otherwise arise when the respondent sought to enforce them.
Neither the appellant nor the respondent took issue with the finding of the Appeal Panel that the appellant's claim purportedly sought to invoke federal jurisdiction and that the Tribunal had no authority to decide the claim because it gave rise to a matter falling within s 76(ii) of the Constitution, being a matter arising under a law or laws made by the Commonwealth Parliament.
Mr Wilson duly served notices under s 78B of the Judiciary Act 1903 (Cth) on the Attorneys General for the Commonwealth, States and Territories. The Attorney General of New South Wales intervened pursuant to s 78A in order to make submissions on the first question in the appeal.
One of the Attorney's submissions was that, contrary to the implicit conclusion of the Appeal Panel, the appellant's claim did not involve a matter arising under federal law. That contention, if correct, would contradict the basis upon which the Appeal Panel ordered that the proceeding be transferred to the Local Court. Neither the appellant nor the respondent has challenged that order. Neither the appellant nor the respondent contends that the appellant's claim does not involve a matter arising under federal law. We declined to entertain this aspect of the Attorney's submissions.
The issue raised by the appeal is whether a State tribunal (not being a court within the meaning of s 71 of the Constitution) whose enabling statute contains a general power to order costs, can order costs against an applicant consequential upon its deciding that it has no authority to decide the applicant's claim because it raises a matter within federal jurisdiction.
If so, a related issue is whether such authority can extend to awarding costs in respect of services extending beyond those provided in challenging the tribunal's authority to decide the matter within federal jurisdiction.
The respondent's solicitor deposed that on 17 October 2017 a Senior Member of the Tribunal made orders requiring the parties to file and serve submissions "as to the jurisdiction of the Tribunal pursuant to s 79L of the Fair Trading Act 1987 (NSW) to hear Mr Wilson's claim". Subsequent orders (more generally expressed) were made for the service of submissions regarding the Tribunal's jurisdiction.
Section 79J of the Fair Trading Act 1987 (NSW) provides that the Tribunal has jurisdiction, except as otherwise provided by Div 2 of Pt 6A, to hear and determine a consumer claim the subject of an application under the Division. Section 79L relevantly provides:
"79L Limitation periods (cf CC Act 1998, s 7 (4) and (4A))
(1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply -
(a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,
..."
The appellant's claim was a "consumer claim" within the meaning of s 79E of the Fair Trading Act 1987 (NSW).
When the application came before Senior Member Wilson on 29 June 2018 there were two remaining respondents to the application. (Claims against three other respondents had been earlier dismissed by J A Ringrose, General Member, on 20 June 2018.) Senior Member Wilson recorded that the first respondent argued that the claim was out of time because the cause of action alleged by Mr Wilson accrued more than three years before the date on which the claim was lodged, namely 2 November 2015. The respondent also adopted submissions of the second respondent, a Mr Brisbane, "about the inability of the Tribunal to apply federal legislation". Senior Member Wilson held that the claim against both respondents was statute-barred under s 79L(1)(a) and gave reasons for that conclusion. She added:
"Even if I am wrong about that, there is no doubt the fact that the Applicant argues that the advice was negligent/ a breach of the ACL because it did not comply with the SISA or SISR or lead the A to contravene the SISA or SISR, means that the Tribunal cannot hear and determine this dispute as to do so would require the Tribunal to consider and apply federal legislation over which the Tribunal has no jurisdiction.
...
In summary, I adopt and largely repeat the words of Senior Member Sarginson in Herbert at [73]:
I am satisfied with a 'high degree of certainty' that it is 'absolutely clear' that, if the applicant is alleging causes of action based on the conduct of the 1R and 2R (even if the causes of action are framed as breaches of the ACL and/or common law rights) that they advised him to engage in conduct that was not in accordance with his obligations under the SISA or SISR, and that by reason of the principles set out in Qantas Airways Limited v Lustig [2015] FCA 253, the Tribunal has no jurisdiction in the matter. Unlike Bilpin v Mainfreight International Pty Ltd [2016] NSWCATCD 70, any claim against the respondents can only be determined by engagement of Commonwealth legislation over which the Tribunal has no jurisdiction.
...
In coming to the conclusion that the A's claims against the respondents are out of time and the Tribunal has no jurisdiction to consider and apply Commonwealth legislation, I have taken the A's claims at their highest. That is, I have accepted that the A's allegations, for example that certain advice was indeed negligent or in breach of s.60 of the NSW ACL, could be or would have been established at a final hearing."
On 6 November 2018 this Court delivered its judgment in Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 declaring that the Tribunal is not a "court of a State" for the purpose of Ch III of the Constitution and s 39 of the Judiciary Act.
In its reasons of 20 December 2018 the Appeal Panel noted that the consequence of this conclusion was that the Tribunal could not exercise federal jurisdiction and was required either to dismiss Mr Wilson's application or transfer the application to a State court or a Federal court (at [22]). It continued:
"23 These issues were the subject of consideration in the Federal Court of Australia in Qantas Airways Limited. There it was argued that the Victorian Tribunal (known as VCAT) could not determine a dispute between the applicants and Qantas because to do so would involve the exercise of Federal jurisdiction by VCAT which was held not to be a Court of a State. That judgment summarised the principles by which it is determined whether a matter arises under a law of the Commonwealth and its implications for the determination of the matter.
24 Paragraphs 80, 81 and 82 are relevant and are set out below:
80. First, a matter arises under a federal law 'if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.': LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 (LNC Industries) at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) (quoting with approval R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ)). As their Honours further explained, this does not mean that the question turns on the form of relief sought or even upon whether the relief depends on federal law (ibid). Thus even if, as in LNC Industries, a claim is made for relief of a kind available under State law (e.g. for damages for breach of a contract) the claim will arise under federal law if the contract is in respect of a right or property (e.g. a trademark) which is the creation of federal law. Equally, a matter arises under federal law 'if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth': LNC Industries at 581 (emphasis added).
81. Secondly, federal jurisdiction is plainly attracted where the right or duty based in federal law 'is directly asserted by the plaintiff or defendant', even though it may also exist in other cases such as where the court finds it necessary nonetheless to decide whether or not a right or duty based in federal law exists: Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 (Moorgate) at 476 (Stephen, Mason, Aickin and Wilson JJ (Barwick CJ agreeing at 467)).
82. Thirdly, once a federal defence is raised in a court vested with the judicial power of the Commonwealth, the whole of the matter is determined by it in the exercise of federal judicial power unless there is some completely disparate claim constituting in substance a separate proceeding: Felton at 373 (Barwick CJ); Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ (Barwick CJ agreeing)); Sunol at 621 [7] (the Court). As Mason, Murphy, Brennan and Deane JJ explained in Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 (Fencott) at 606:
…the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone. As Windeyer J said in Felton v Mulligan (1971) 124 CLR 367 at 393:
'The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.'
25 Here, the appellant's Points of Claim alleged:
(1) That one of the respondents, Mr Raiss, without holding the appropriate license gave investment and financial advice to set up and operate a self-managed superfund and invest superfund retirement savings in a joint venture (par 6);
(2) The respondents (or some of them) failed to give advice concerning the effect of a view held by the Australian Taxation Office (ATO) contained in publications identified as ATO ID 2006/335 (par 13) and SMSFR 2009/4 (par 17); and
(3) The respondents gave 'bad advice' and failed to warn the appellant about the risks for the appellant if the view of the ATO was found to be correct (par 33).
26 In our view, the allegations involve the assertion of a duty held by the respondents (or some of them) owed to the appellant to give advice concerning Federal law (in particular the law concerning Federal taxation and the management of superannuation entities which are regulated by Federal law). A consideration of that duty involves a consideration of Federal law.
27 As a consequence, the points of claim involve the exercise of Federal jurisdiction and the Tribunal is not, in our view, vested with power to determine such dispute."
In the light of this conclusion the Appeal Panel said that it was not necessary for it to consider the issues raised in submissions concerning s 79L of the Fair Trading Act, but said that it was generally not appropriate to deal with jurisdictional issues on a summary basis (at [71]).
On 29 June 2018 Senior Member Wilson had invited applications on submissions on the question of costs following her dismissal of the appellant's application. The respondents sought an order for costs which the appellant opposed. Senior Member Wilson noted that the Appeal Panel had published its decision on 20 December 2018 and observed that it was "now appropriate to determine the costs application foreshadowed on 29 June 2018" (at [12]). On 14 January 2019 she ordered that the appellant pay the respondents' costs of the proceedings from 8 September 2017 to 14 January 2019 as agreed or assessed on the ordinary basis (at [79]).
It appears from the reasons of Senior Member Wilson of 14 January 2019 (at [57]) that the appellant submitted before her that:
"Since you found Tribunal does not have jurisdiction this means that District Court did not have the power to transfer its proceedings to Tribunal under sch 4, cl 6(2) of CAT Act 2013 and hence there was/is no valid proceedings in the Tribunal."
Senior Member Wilson rejected this submission. She referred to ss 29(3) and 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") and said:
"59 ... Since the Tribunal has power to determine whether it has jurisdiction, which it did on 29 June 2018, it also has the power to determine the costs of the hearing and preparation about the same.
60 It matters not that on 21 December 2018 the Appeal Panel transferred the proceedings to the Local Court. The Tribunal retains jurisdiction to deal with a cost application for which submissions were properly filed and served after the institution of appeal proceedings in the same matter."
The Senior Member addressed s 60(3) of the NCAT Act which provides in substance that unless there are special circumstances, the parties to proceedings in the Tribunal will bear their own costs. She found that there were special circumstances to warrant the making of a costs order. The Senior Member said:
"For the period 3 November 2016 to 6 February 2017
65 From when the remitted came back to the Tribunal until it was transferred to the District Court, there was not a determination of who was successful such that CNP should necessarily get its costs for this period. The Tribunal has insufficient evidence to satisfactorily discharge its discretion that CNP should get its costs for this period.
66 If CNP wanted its costs for this period it should have sought them at the transfer hearing on 6 February 2017 or thereafter. It did not, and the Tribunal determines it is not appropriate to order its costs in this period now, with insufficient evidence about who was the successful party in this period.
For the period 8 September 2017 to present: Special circumstances
67 As to the consideration in s.60 (3) (a), the Tribunal concludes that the applicant has conducted these proceedings in a way that unnecessarily disadvantaged the first and second respondents. I find the applicant served extensive material in support of his claim which the respondents' solicitors had to spend time reviewing which would have been saved if they had been presented in an ordered, logical and concise manner. The Tribunal appreciates that, as at 29 June 2018, the applicant was self-represented. But he is an intelligent man who has been heavily involved in these proceedings for several years and has been legally represented for part of that history. He could have conducted the proceedings in a way that did not disadvantage the respondents to the extent that he has, with many amendments, changes of parties, filing of multiple proceedings some of which were withdrawn, others dismissed and others transferred, only to be transferred back to the Tribunal. The applicant has joined respondents, then sought the removal of those respondents, and served a Points of Claim document which did not clearly identify what he was claiming from each of the numerous respondents.
...
70 As to the consideration in s.60(3)(b), the Tribunal concludes that, despite being legally represented at times, and having a thorough understanding of the facts in issue, if not the law, the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings. The current matter which is GEN17/39611, has been appealed, remitted, transferred to the District Court, transferred back to the Tribunal and again appealed, only to be transferred ultimately to the Local Court."
The Senior Member also took into account that it was the appellant who purportedly invoked the jurisdiction of the Tribunal in respect of a federal matter in respect of which it did not have adjudicative authority (at [69]).
The appellant, who was not legally represented, submitted that Senior Member Wilson and the Appeal Panel had no power to order costs where, according to the submission, the Tribunal was purporting to exercise a "non-existent jurisdiction", invoking the reasoning of Katz J in Khatri v Price (1999) 95 FCR 287; [1999] FCA 1289 at [19] (see [76] below).
The Attorney General helpfully elaborated upon the submission that the appellant, if legally represented, might have made. First, the making of a costs order under s 29(2)(a), s 32(2)(a) or s 60 of the NCAT Act involves an exercise of judicial power. Pursuant to s 78 of the NCAT Act, a registrar of the Tribunal could certify an amount payable pursuant to a costs order and that certificate when filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate would operate as a judgment of the court (Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [30] per Leeming JA).
Secondly, where proceedings involve a matter in federal jurisdiction, federal jurisdiction "is exercised throughout the case 'unless perhaps there is some completely disparate claim constituting in substance the separate proceeding'", (Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 481 citing Felton v Mulligan (1971) 124 CLR 367 at 373). As the Attorney submitted, the appellant can say that the costs applications before Senior Member Wilson and the Appeal Panel were not disparate claims, nor severable from the appellant's claim that involved a matter in federal jurisdiction.
The Attorney submitted that when Barwick CJ said in Felton v Mulligan (at 373) that federal jurisdiction "is exercised ... throughout the case", his Honour was using the term "federal jurisdiction" to describe the fact that the source of the court's authority, even to determine the non-federal aspects of the case, derived from Commonwealth law, namely, s 39 of the Judiciary Act. The Attorney submitted that it does not follow from the fact that the appellant's claim in the Tribunal purportedly invoked federal jurisdiction because it involved a matter arising under a federal law within the meaning of s 76(2) of the Constitution, that the Tribunal's decision as to whether it did or did not have authority to decide the application involved an exercise of federal jurisdiction, nor that the costs orders made as a consequence of its determination that it did not have jurisdiction was, or was part of, a matter arising under federal law.
I agree with that submission. The Tribunal had both the authority and the duty to decide whether it had authority to decide the appellant's application, although its answer could not be definitive (R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 429; [1983] HCA 35; Re Adams and Tax Agents' Board (1976) 12 ALR 239 at 241, 242 per Brennan J; Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 at [8], [20]).
In forming the opinion that it had no authority to decide a matter in federal jurisdiction the Tribunal did not exercise federal jurisdiction (which it had no authority to do). Its decision was anterior to the exercise of federal jurisdiction (Gaynor v Attorney General of New South Wales [2020] NSWCA 48; 378 ALR 366 at [22], [137]).
A tribunal's duty and authority to consider the limits of its authority arises because it must be satisfied that its proceedings are in accordance with law and "in order that it may appropriately mould its conduct" (Re Adams and Tax Agents' Board at 242; Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349; 236 ALR 385 at [32]-[37]). "Its jurisdiction to do so is an implied jurisdiction, as an incident of its establishment and other functions" (Yanunijarra Aboriginal Corp RNTBC v State of Western Australia [2020] FCAFC 64 at [108]). In the case of NCAT that implied jurisdiction is intrinsically linked to its establishment as a tribunal with constitutional and legislative restraints on its power. It is consistent with the conclusion that the Tribunal's determination that it lacked authority to decide the appellant's claim did not involve an exercise of federal judicial power, that it should have power to make a costs order consequential on that decision (M J Leeming, Authority to Decide: The Law of Jurisdiction in Australia, 2nd ed, Federation Press 2020 at 36).
In Khatri v Price a liquidator obtained orders for examination in the Federal Court purportedly pursuant to the New South Wales Corporations Law. Following the High Court's decision in Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 it was common ground that the Federal Court did not have jurisdiction to make orders summoning persons for examination and granting a warrant for seizure of documents. The liquidator applied for an order that the director pay the costs of the applications in the Federal Court relying upon the terms of s 43(1) of the Federal Court of Australia Act 1976 (Cth) that relevantly provided:
"... a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction)".
Katz J refused the liquidator's application holding (at [19]) that:
"Section 43(1) of the Act, does not, however, confer upon this Court a jurisdiction to award costs in proceedings in which it has purported to exercise a non-existent jurisdiction. Not only do the parenthetical words in s 43(1) not support, for the reasons which I have already given, Mr Khatri's argument, but their presence appears to me to militate against that argument, by providing the basis for an expressio unius argument to be made in connection with the construction of s 43(1)."
However, Katz J did not doubt (at [18]) that:
"...to deal with those proceedings before it in which the only jurisdiction which the Court has actually exercised has been its limited jurisdiction to determine that it does not have the jurisdiction purportedly invoked, s 43(1) of the Act confers, by its parenthetical words, a jurisdiction to award costs in proceedings dismissed for want of jurisdiction."
In Qantas Airways Limited v Lustig (2015) 228 FCR 148; [2015] FCA 253 Perry J held that the Victorian Civil and Administrative Tribunal did not have jurisdiction to determine an application that, by reason of the defence, was within federal jurisdiction. Part of her Honour's reasons were quoted by the Appeal Panel at [24] of its reasons and are set out at [56] above.
Perry J also said (at [109]):
"This is not to say that the State could not have legislated to confer power on the Tribunal to transfer part or all of proceedings instituted in the Tribunal, but over which it lacks jurisdiction, to another court or decision-making body. However, in my view, there is nothing in the language of s 77(1) suggesting that Parliament intended to do so. It follows [as] Qantas correctly submitted that, absent jurisdiction, the Tribunal has power only to dismiss the proceedings and to make any consequential costs order: see by analogy Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Limited [1943] HCA 13; (1943) 67 CLR 25 at 41 (Latham CJ); Mercator Property Consultants Pty Ltd v Christmas Island Resort [1999] FCA 1572; (1999) 94 FCR 384 at 389 [20]-[21] (French J). In short, 'without jurisdiction', as Kirby J said in Hearne v Street, 'other issues fall away. If there is no jurisdiction, a court normally has no business entering into arguments about any substantive or procedural questions, except perhaps the consequential disposition of costs.' [2008] HCA 36; (2008) 235 CLR 125 at 135 [17]."
No issue arises on the present appeal as to the authority of the Appeal Panel to order the transfer of the proceedings to the Local Court.
Because the Tribunal's exercise of jurisdiction to determine that it did not have authority to determine the appellant's application was not itself an exercise of the judicial power of the Commonwealth, ss 4, 29, 32(2)(a) and 60 of the NCAT Act authorised the making costs orders that were consequential on that determination.
It does not follow that the Tribunal had power to make costs orders that were not consequential on its determination that it lacked authority to determine the appellant's claim. To do so would involve the exercise of federal judicial power, and would not be authorised by those provisions.
In Burns v Corbett Kiefel CJ, Bell and Keane JJ said (at 335 [43]):
"But whatever choices may be made by the Commonwealth Parliament in this regard, adjudicative authority in respect of the matters listed in ss 75 and 76 of the Constitution may be exercised only as Ch III contemplates and not otherwise. Chapter III contemplates the exercise of adjudicative power only by this Court, by other federal courts created by the Commonwealth Parliament, by State courts invested with such power by the Commonwealth Parliament or by State courts to which such adjudicative authority belongs or in which it is invested."
Gageler J was of the same view (at 346, [68]; 348 [76], [78]; 364 [119]).
Where the matter is within federal jurisdiction because the claim or defence depends upon federal law for its enforcement, or the subject matter of the contract sued on is the creation of federal law, the whole of the justiciable controversy, encompassing all claims made within the scope of the controversy, are encompassed within the matter (CGU Insurance Ltd v Blakely (2016) 259 CLR 339 at 351-352 [29]-[30]; [2016] HCA 2).
The parties' claims for costs were part of the controversy and part of the matter within federal jurisdiction. To the extent the Tribunal determined its authority to decide the proceedings it was not exercising federal jurisdiction and hence could make costs orders consequential on that determination. But beyond that, the Tribunal was purporting to determine the merits of the matter in federal jurisdiction, namely the merits of that part of the justiciable controversy that concerned how the claims for costs of the controversy generally (up to the date of the Tribunal's order) should be determined.
The costs order made by the Appeal Panel was consequential upon its determination that the Tribunal lacked jurisdiction because the appellant's claim, purportedly invoked federal jurisdiction, and its decision that the appropriate course was to transfer the proceeding to the Local Court rather than to dismiss the appellant's application. For the above reasons the Appeal Panel had authority to make that costs order.
The costs order made by Senior Member Wilson on 14 January 2019 is in a different category. The Senior Member had power to order that the appellant pay the respondent's costs of the application to dismiss the proceeding for want of jurisdiction.
The order made was that the appellant pay the respondent's costs of the proceedings from 8 September 2017, that being the date upon which the proceedings were transferred back to the Tribunal from the District Court. At [59] of her reasons (quoted at [60] above) the Senior Member said the Tribunal had power to determine the costs of the hearing (to dismiss the claim for want of jurisdiction) and preparation for the hearing. I agree. But the order was not so confined. The order had both a positive and negative aspect. At [67] of her reasons (quoted at [61] above) the Senior Member referred to costs incurred by the respondent and its solicitors in having to review extensive material served by the applicant in support of his claim, which was not presented in an ordered, logical and concise manner, and to the applicant's conduct of proceedings in a way that disadvantaged the respondent. At [65]-[66] of her reasons the Senior Member explained why she refused to order the applicant to pay the respondent's costs before the transfer to the District Court. The considerations referred to had nothing to do with the jurisdictional challenge.
The affidavit of the respondent's solicitor of 2 August 2018 referred to at [51] above included a table of costs claimed against the appellant. These included costs from the time the solicitor took instructions on 11 January 2016, including costs of the first appeal to the Appeal Panel and costs incurred prior to the transfer of the proceedings to the District Court. The costs claimed from 8 September 2017 included costs of the solicitor's liaising with the client regarding the outcome of the notice of motion for transfer of the proceeding back to the Tribunal and settlement strategy; consideration of limitation issues; consideration of the appellant's new application for the joinder of new defendants; reviewing invoices for the purpose of making demand for reimbursement of costs; calculating costs payable pursuant to orders made in the District Court for the costs in that Court; providing submissions to the Tribunal regarding the duplication of proceedings as a result of the appellant's proposed joinder of additional parties; considering issues concerning limitation periods; preparation for and attendance at a directions hearing on 17 October 2017; drafting, reviewing and amending points of defence, and like matters (CB 353 ff).
In so far as Senior Member Wilson's costs order extended beyond the ordering of costs of and incidental to the application to dismiss the proceeding for want of jurisdiction, it was beyond power. To that extent the order was in the same category as the invalid costs orders made against Mr Gaynor in the Tribunal in Burns v Corbett as a result of earlier NCAT interlocutory decisions (Burns v Corbett (2018) 265 CLR 304 at 308; Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [7], [106]).
Where I differ from Leeming JA is that in my view the claims for costs of the proceedings generally, that is, divorced from the challenge to jurisdiction, were aspects of the matter in federal jurisdiction. In my view, Senior Member Wilson did purport to determine non-jurisdictional aspects of the proceeding (cp at [29] per Leeming JA), namely how all costs incurred in relation to the proceedings in the Tribunal prior to their transfer to the Local Court should be borne.
I would answer the first question for which leave to appeal was granted yes as to order 3 made by the Appeal Panel of 20 December 2018, and no as to the order of Senior Member L Wilson of 14 January 2019.
I would answer the second question that the order of 14 January 2019 of Senior Member L Wilson should be set aside and in lieu thereof the appellant should be ordered to pay the costs of and incidental to the application that the appellant's application to the Tribunal be dismissed for want of jurisdiction.
The appellant has had some measure of success, but the first respondent has nonetheless been the predominantly successful party and is entitled to its costs of the appeal. The Attorney General has not sought an order for costs.
For these reasons I propose the following orders:
1. Appeal allowed in part.
2. Set aside order 1 made by Senior Member L Wilson of the Tribunal of the second respondent that the appellant pay the first respondent's costs of proceedings in the Tribunal from 8 September 2017 as agreed or assessed on the ordinary basis.
3. In lieu thereof, order that the appellant pay the first respondent's costs of and incidental to the application to the Tribunal that the appellant's application to the Tribunal be dismissed for want of jurisdiction.
4. Otherwise order that the appeal be dismissed.
5. Order that the appellant pay the first respondent's costs of the appeal.