Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 Hearing dates: 11 September 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member D Goldstein, Senior Member Decision: 1. The decision at first instance is quashed and proceedings GEN 23/13621 are dismissed as the Tribunal lacks jurisdiction. 2. The appeal is otherwise dismissed. Catchwords: APPEALS – jurisdiction of Tribunal to determine matter in exercise of judicial power where the Australian Postal Corporation is a party – authority to decide whether Australian Postal Corporation is 'the Commonwealth' for the purpose of s 75(iii) of the Constitution – whether the mere raising of that contention on a genuine basis deprives the Tribunal of jurisdiction – jurisdiction of Tribunal's Appeal Panel to make orders affecting decision at first instance in absence of ability to adjudicate on matters in federal jurisdiction Legislation Cited: Acts Interpretation Act 1901 (Cth) Australian Consumer Law (NSW) Australian Postal Corporation Act 1983 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Northern Territory Aboriginal Sacred Sites Act 1989 (NT) Public Governance, Performance and Accountability Act 2013 (Cth) Cases Cited: Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1 Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 Bale v Mills [2011] NSWCA 226 Bank Nationalisation Case (1948) 76 CLR 1 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219; [1992] HCA 6 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 Federated Amalgamated Government Railways and Tramways Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530 Re Residential Tenancies Tribunal of New South Wales; Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410; (1997) 146 ALR 495; (1997) 71 ALJR 1254; [1997] HCA 36 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 The Ombudsman v Moroney [1983] 1 NSWLR 317 Williams v Australian Postal Corporation t/as Australia Post [2023] NSWCATCD 79 Wilson v Chan & Naylor Parramatta Pty Ltd (2023) 103 NSWLR 140; [2020] NSWCA 213 Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311 Texts Cited: None Cited Category: Principal judgment Parties: Australian Postal Corporation (Appellant) Lux Cuttings Pty Ltd (Respondent) Representation: Counsel: J Wherrett (Appellant) Solicitors: Self-Represented (Appellant) Self-Represented (Respondent) File Number(s): 2023/00242911 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 03 July 2023 Before: G Towney, General Member File Number(s): GEN 23/13621 REASONS FOR DECISION Summary 1. As was made clear in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, this Tribunal has no jurisdiction to exercise judicial power over a matter within federal jurisdiction. That is because it is not a court and, more precisely, not a Court of a State endowed with jurisdiction under Chapter III of the Constitution. It does, however, have incidental (or anterior) jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; Wilson v Chan & Naylor Parramatta Pty Ltd (2023) 103 NSWLR 140; [2020] NSWCA 213 (Wilson NSWCA); Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta). 2. This appeal concerns one simple question, to which the answer is complex. The question is whether the appellant, the Australian Postal Corporation (Australia Post), is 'the Commonwealth' for the purposes of the Constitution. If it is, the Tribunal acted beyond jurisdiction in ordering Australia Post to pay the respondent, Lux Cuttings Pty Ltd (Lux), the sum of $72.97 as a refund for lost goods, and for services paid for but not provided in breach of contract and of warranties contained in the Australian Consumer Law (NSW). That is because s 75(iii) of the Constitution provides, relevantly: 75. Original jurisdiction of High Court. In all matters— … (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: … the High Court shall have original jurisdiction. 1. Clearly, the greater principle involved has subsumed either party's commercial interests in the dispute, and a small and seemingly straightforward commercial dispute now opens a range of constitutional issues for this Appeal Panel. 2. There are now conflicting decisions in this Tribunal's Consumer and Commercial Division on this point. The Tribunal was found to lack jurisdiction due to the s 75(iii) issue in McKerrell v Australian Postal Corporation (Unreported, GEN 23/01140) but to have jurisdiction in Williams v Australian Postal Corporation t/as Australia Post [2023] NSWCATCD 79 and the decision that is the subject of this appeal. We have not been referred to, or located, an occasion where the issue has been considered at an appellate level. 3. As we are satisfied that the Tribunal lacks jurisdiction, we will quash the decision at first instance. However, for reasons we will return to, even that step is not without its complications. Background 1. The parties entered annual contracts regarding the delivery of parcels. Lux is a small business and Australia Post agreed to deliver its parcels to customers. 2. Lux engaged Australia Post on two occasions, on or about 30 May 2023 and 16 September 2023. Lux requested both delivery and an extra, 'signature required', service under the contract on both occasions. 3. Neither parcel was delivered to the relevant address and signed for, and both were later deemed to have been lost in transit. No refund or compensation was paid by Australia Post to Lux, either for the cost of postage or the 'signature required' feature of the proposed deliveries. Nor did Australia Post refund the value of the goods contained in the parcels. Tribunal's reasons for decision 1. The Tribunal found that Australia Post breached both its contract with Lux and the implied warranties it was subject to under the Australian Consumer Law (NSW). It ordered a refund of the total of the price paid for the services and the value of the goods contained in the parcels. 2. Australia Post raised the argument it now agitates in the appeal before the Tribunal, but the Tribunal's reasons indicate it may not have appreciated the gravamen of the argument. The Tribunal, instead, referred to the effect of parties being resident in different states, which was the relevant jurisdictional impediment considered in Burns v Corbett, but is irrelevant here. Scope and nature of internal appeals 1. An appeal of this nature may proceed without leave on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 2. The question of whether Australia Post is 'the Commonwealth' for the purposes of s 75(iii) of the Constitution meets that criterion. It is to be determined by a process of interpretation and evaluation by reference to statute. Whether the Tribunal has jurisdiction more broadly also qualifies as a question of law. Consideration 1. There is no issue, and we are satisfied, that the determination of claims of this nature under the Australian Consumer Law (NSW) by the Tribunal involves the exercise of judicial (as opposed to administrative) power. There is a justiciable controversy between the parties that can qualify as a 'matter' in the constitutional sense. 2. It is agreed, and we accept, that if Australia Post is 'the Commonwealth' for the relevant purpose, then the Tribunal had no jurisdiction. A preliminary jurisdictional issue not raised by the parties 1. The parties prepared and argued the appeal on the sole ground that we should determine whether the Tribunal lacked jurisdiction because Australia Post is 'the Commonwealth' for relevant purposes. 2. However, during our deliberations whilst reserved, a preliminary question arose which is whether Australia Post raising the question of whether it is 'the Commonwealth' is enough to deprive the Tribunal of jurisdiction, irrespective of the correct answer to that question. 3. There is no doubt that where a party to proceedings involving the exercise of judicial power in the Tribunal raises a defence that relies on a Commonwealth law or on the Constitution to give rise to a matter as described in s 76(i) or s 76(ii) of the Constitution, the Tribunal is then deprived of jurisdiction. The only condition is that the defence is "genuinely raised and not incapable on its face of legal argument": Citta at [35]. 4. Those provisions of the Constitution provide, relevantly: 76. Additional original jurisdiction. The Parliament may make laws conferring original jurisdiction on the High court in any matter— (i.) Arising under this Constitution, or involving its interpretation: (ii.) Arising under any laws made by the Parliament: … 1. We gave the parties leave to make further written submissions, limited to this issue. 2. Both parties complied, however the respondent sought to agitate two further issues, without leave. The first was a request to be represented in these proceedings by Mr Michael Williams or, as a fallback, that we accept the submissions jointly authored by Mr Williams as the respondent's reply to our request for limited further written submissions. Mr Williams is the party to the proceedings bearing his surname that we referred to in [4] above. Australia Post has appealed the outcome of those proceedings and that appeal is in abeyance with the consent of those parties, pending the outcome of this matter. The second was an indication by the respondent that Mr Williams wishes to intervene in these proceedings. It appears that one of the reasons that the respondent's reply to our request for written submissions partially traverses the merits of the matter was so that Mr Williams might ensure the arguments he wishes to make in the appeal in which he is a party are before us. 3. There is no provision for intervention by a party in Mr Williams' position in this Tribunal: NCAT Act, s 44(4). Nor does it appear that he is a proper or necessary party to these proceedings: NCAT Act, s 44. In any event, no formal application was made by anyone for an order to allow Mr Williams to intervene and certainly not for joinder. Parties have no right to make submissions without leave, or going beyond a grant of leave, after the Tribunal is reserved in a matter. As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]: "The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions." 1. Other judicial comments to similar effect reinforce that position: see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed); Bale v Mills [2011] NSWCA 226 at [57] to [61]. 2. We will, however, consider the respondent's submissions that are relevant to our request, irrespective of the fact they were co-authored by Mr Williams. 3. The appellant's response to our request for submissions was delivered a day late, even after an extension of time was granted. The respondent objects to us receiving the submissions on that basis. However, for the reasons we will come to, those submissions are not persuasive, and it would not be the just, quick and cheap way to proceed to allow the parties to continue to agitate that issue in the circumstances. We will simply indicate why the appellant's position is not accepted in any event. 4. The appellant submits in response to our request that, in Citta, the question was whether, in order to have given rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, the constitutional defence asserted by the appellants needed to meet some threshold degree of arguability and, if so, what that threshold was. In answer to that question, the plurality held, at [35]: "The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument." 1. The plurality went on to say that "examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment": at [37]. 2. To similar effect, Edelman J said that "it is not necessary in order to identify the existence of a matter 'arising under this Constitution' for a court or tribunal to resolve the issue arising under the Constitution", and that "[i]t is sufficient that the court or tribunal considers that the dispute arises": at [67]. His Honour said that the issue "arises" if the constitutional argument that is advanced is not "manifestly hopeless": at [81]. 3. Applying that test to the facts in Citta, the Court concluded that the constitutional defence raised by the appellants – that there was a defence available under the Disability Discrimination Act 1992 (Cth) – in the proceedings in the Tasmanian tribunal that engaged the application of s 109 of the Constitution was "genuinely raised and not incapable on its face of legal argument" and was not "manifestly hopeless": at [10], [81]. On that basis, the Tribunal did not have jurisdiction to determine the respondent's complaint. 4. In the present case, the appellant submits that it is enough to deprive the Tribunal of jurisdiction where it is genuinely arguable that Australia Post is the Commonwealth and because the parties have joined issue on whether Australia Post is properly characterised as 'the Commonwealth' within the meaning of s 75(iii) of the Constitution. The fact that the parties have joined issue on that question means that there is a dispute between the parties about the interpretation of s 75(iii). Consistent with Citta, if the appellant's argument is "genuinely arguable" or not "manifestly hopeless" that is sufficient for the matter to "arise under" the Constitution within the meaning of s 76(i) of the Constitution. 5. In addition, the proceedings may also involve a matter arising under a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution, as the determination of whether Australia Post is 'the Commonwealth' requires the Tribunal to construe the Australian Postal Corporation Act 1989 (Cth) (APC Act). Given the determination of whether Australia Post is 'the Commonwealth' turns on the construction of the statute that establishes Australia Post, the matter may be properly characterised as "arising under" that law, rather than only involving its interpretation. 6. In contrast, the respondent's position is that the appellant's reliance on the argument that it is 'the Commonwealth' is not a defence but merely engages the Tribunal's ability to determine its own jurisdiction, even if that involves interpreting Commonwealth law, especially since deciding jurisdiction itself is not an exercise of judicial power. Even if Australia Post is 'the Commonwealth' per s 75(iii) of the Constitution, this is not an actionable defence giving immunity or a source of right that arises under Commonwealth law. 7. The respondent submits that the appellant has not raised any tenable defence that suggests that the source of a right or immunity arose from Commonwealth law, such as the APC Act. 8. The respondent further submits that the Tribunal must first decide whether federal jurisdiction exists, specifically if Australia Post is 'the Commonwealth' per s 75(iii) of the Constitution, before the Tribunal should consider any defence raised by Australia Post, and that a distinction should be drawn between merely interpreting a federal law, which is insufficient to attract federal jurisdiction, and a matter arising under a federal law. The difference is not reliably placed into a universally valid test. In Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39, the following was said by Barwick CJ at 374: ". . . Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of: cf Nelungaloo Pty Ltd v The Commonwealth [(1952) 85 CLR 545; [1952] HCA 11]; The Commonwealth v Bank of New South Wales [(1949) 79 CLR 497; [1949] HCA 47]. It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s 76(i) and 76(ii) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained." 1. In the same decision, Walsh J at 408 to 409 stated: "A comparison between the terms of s 76(i) and those of s 76(ii) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [(1945) 70 CLR 141; [1945] HCA 50] by Latham CJ and McTiernan J [at 173]. There Latham CJ said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" [at 154]. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act." 1. Finally, in respect of that decision, the respondent cites Gibbs J at 416: "...I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s 76(ii) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v South Australia [(1927) 40 CLR 1 at 401; [1927] HCA 32] in relation to s 30 of the Judiciary Act, it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege, or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law." 1. We accept that Australia Post has genuinely raised an arguable proposition that the correct construction of the APC Act, which governs it, leads to the conclusion that it is 'the Commonwealth'. However, we agree with the respondent that this is not Australia Post's defence in the proceedings at first instance. Unlike the situation that confronted the Tribunal at first instance in Citta, Australia Post raising the issue of jurisdiction is not "the answer made to a claim … that [Australia Post] is free from the obligation asserted against [it] and that this freedom is conferred by an Act of the Parliament." To test that proposition, it is enough to note that it would be no defence (insofar as this issue was advanced by Australia Post) to an identical claim commenced in a Chapter III Court. 2. Nor does the appellant's objection to jurisdiction require us to interpret s 75(iii) of the Constitution. The parties agree that the relevant meaning of that provision is clear. On that basis, we will go on to expose why we are satisfied Australia Post is, relevantly, 'the Commonwealth' by construing the APC Act but we note that, if we are wrong on this preliminary point, the same ultimate conclusion is reached in that the Tribunal is deprived of jurisdiction. Consideration of the case raised by the parties 1. The following paragraphs largely summarise the appellant's submissions on the substantive issue, with which we agree. 2. It is beyond question that governmental functions may be carried out through statutory corporations and that those corporations can be 'the Commonwealth' within the meaning of s 75(iii) of the Constitution. In Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230-231; [1992] HCA 6 (DCT v State Bank NSW) the Court said: "Once it is accepted that the Constitution refers to the Commonwealth and the States as organizations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government. Such activities have, since the nineteenth century, included the supply on commercial terms of certain types of goods and services by government owned and controlled instrumentalities with independent corporate personalities." 1. In Inglis v Commonwealth Trading Bank of Australia (1992) 174 CLR 219; [1992] HCA 6 (Inglis), Kitto J (with whom Barwick CJ and Windeyer J agreed) said: "The question is ... what intention appears from the provisions ... in the relevant statute: is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of Commonwealth activity cannot realistically be applied to that which the corporation does?" 1. The issue should be construed broadly, to consider whether "… the Commonwealth in substance, though not necessarily in form, is suing or being sued" (Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 per Jacobs J at [9]), giving s 75(iii) "a wide construction and effect": ibid. 2. Several decisions of the High Court assist in identifying and assessing the relevant indicia. The Court has decided that the following entities were, relevantly, 'the Commonwealth': 1. The Commonwealth Bank of Australia (as it was then constituted): Bank Nationalisation Case (1948) 76 CLR 1; Inglis. (Whilst in Inglis the Court was divided as to whether the Commonwealth Trading Bank was 'the Commonwealth' or 'a person suing or being sued on behalf of the Commonwealth', that difference is of no real consequence: DCT v State Bank NSW at 232); 2. Air Services Australia: Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39; and 3. The Australian Securities and Investment Corporation (ASIC): Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 (Edensor). The relevance of the Public Governance, Performance and Accountability Act 2013 (Cth) 1. Before turning to consideration of the indicia identified by the High Court in those decisions, it is necessary to acknowledge a legislative development that has occurred since each of those matters were decided. In 2013, the Commonwealth enacted the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act). That Act provides, relevantly, as follows: 5 Objects of this Act The objects of this Act are: (a) to establish a coherent system of governance and accountability across Commonwealth entities; and (b) to establish a performance framework across Commonwealth entities; and (c) to require the Commonwealth and Commonwealth entities: (i) to meet high standards of governance, performance and accountability; and (ii) to provide meaningful information to the Parliament and the public; and (iii) to use and manage public resources properly; and (iv) to work cooperatively with others to achieve common objectives, where practicable; and (d) to require Commonwealth companies to meet high standards of governance, performance and accountability. 10 Commonwealth entities (1) A Commonwealth entity is: (a) … (d) a body corporate that is established by a law of the Commonwealth; or (e) a body corporate that: (i) is established under a law of the Commonwealth (other than a Commonwealth company); and (ii) is prescribed by an Act or the rules to be a Commonwealth entity. Note: Commonwealth companies are not Commonwealth entities because they are not covered by this subsection. Chapter 3 deals with Commonwealth companies. … 11 Types of Commonwealth entities There are 2 types of Commonwealth entities: (a) a corporate Commonwealth entity, which is a Commonwealth entity that is a body corporate; and (b) a non‑corporate Commonwealth entity, which is a Commonwealth entity that is not a body corporate. Note: Corporate Commonwealth entities are legally separate from the Commonwealth, whereas non‑corporate Commonwealth entities are part of the Commonwealth. 1. Australia Post is a corporate Commonwealth entity as defined. As a result, at least to the extent there can be said to be some ambiguity, the notation to s 11 of the PGPA Act that "[c]orporate Commonwealth entities are legally separate from the Commonwealth…" must be considered, in context, with the other provisions of that Act and afforded appropriate weight. It cannot, however, "… control the meaning of the section": The Ombudsman v Moroney [1983] 1 NSWLR 317 at 325 per Street CJ. 2. In Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1, the Full Court of the Northern Territory Supreme Court considered whether the Director of National Parks could be held responsible for an alleged breach of s 34 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). In holding that the Director, who was acknowledged to be a corporate Commonwealth entity, was nonetheless the Commonwealth, the Court said at [61]: "… The Director is a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth). What this means in practice is that the Director is subject to budgetary reporting and government auditing requirements, and the potential application of Government Policy Orders. The designation of the Director as a 'corporate Commonwealth entity' for the purpose of that legislation is only to recognise that the Director has separate legal personality. So far as operational matters are concerned, activities in Commonwealth reserves involving dealings with native species, excavation, building activity, other works and commercial activities may only be undertaken in accordance with management plans prepared by the Director and ultimately approved by the Minister with any modifications the Minister considers appropriate." 1. We are satisfied that, properly construed, s 11 of the PGPA Act does not preclude Australia Post from being considered to be 'the Commonwealth' for the purposes of s 75(iii) of the Constitution. That section, read in context and having regard to the objects of the Act is procedural in character, and deals with broader issues such as the name in which proceedings may be brought and other regulatory considerations such as governance, performance and accountability. That is consistent with the effect of s 13 of the APC Act, which governs Australia Post and states, relevantly, that Australia Post "continues to be a body corporate" and "may sue and be sued in its corporate name." Indicia favouring a finding that Australia Post is 'the Commonwealth' 1. Australia Post raises several indicia that point towards it being 'the Commonwealth' for constitutional purposes but acknowledges that some contrary indicia exist. 2. It also places reliance on its historic formation, in that the provision of postal services, which remains its "principal function" (APC Act, s 14), used to be performed by a Department of State, namely the Postmaster-General's Department, which was one of the seven original Departments of State established under s 64 of the Constitution at Federation. The relevant departments were transferred to the Commonwealth by proclamation on 1 March 1901, consistently with s 69 of the Constitution. 3. Australia Post primarily relies on the indicia set out by the Court in Edensor. There, at [39], Gleeson CJ, Gaudron and Gummow JJ observed that the fact that ASIC had been established as a body corporate by legislation "does not, of itself, deny the proposition that ASIC falls within the scope of the expression 'the Commonwealth' in s 75(iii) of the Constitution". 4. In finding that ASIC was the Commonwealth for the relevant purpose, their Honours relied on various factors, including: the members of ASIC were appointed by the Governor-General on the nomination of the Minister; the Minister could give written directions to ASIC respecting the exercise of its functions and powers; the functions and powers of ASIC were set out in the Act and "pertain to the executive functions of government"; staff of ASIC were appointed under the Public Service Act 1922 (Cth); Parliament appropriated money for the purposes of ASIC; and ASIC was subject to review by both the Parliamentary Joint Committee on Corporations and Securities and the Commonwealth Auditor-General. 5. In a separate judgment, McHugh J relied on many of the same factors. At [127], his Honour said: "Where the Commonwealth has incorporated a body with no corporators which: * carries out public functions and exercises public powers; * is controlled by persons appointed by a Minister of the Commonwealth government; * is under the ultimate direction and control of a Minister of the Commonwealth government; is funded by the Commonwealth and can be required to pay its revenues, profits or surpluses to the Commonwealth; and * is audited by the federal Auditor-General or is required to report to the Parliament of the Commonwealth, it will be "the Commonwealth" for the purposes of Ch Ill of the Constitution unless there is some extraordinary provision or provisions in its constating statute that indicates that it is independent of the Commonwealth." 1. We now turn to consider the APC Act. Several of the indicia identified in Edensor exist in respect of Australia Post, including all of those set out by McHugh J and cited in [51] above: 1. Australia Post is a body corporate established by a law of the Commonwealth Parliament (ss 12, 13 of the APC Act), and a "corporate Commonwealth entity" subject to the PGPA Act, s 10(1)(d); 2. While it is a body corporate, it has no corporators; 3. As it submits, the activities it undertakes are, to a substantial extent, "governmental" in nature, in that subject to the exceptions in s 30 of the APC Act, it "has the exclusive right to carry letters within Australia": APC Act, s 29(1); 4. Whilst it must "perform its functions in a manner consistent with sound commercial practice", it is only required to do so "as far as practicable": APC Act, s 26; 5. It is also bound to comply with "community service obligations" under s 27 of the APC Act and "general government obligations" under s 28 of the APC Act; 6. In respect of the extent to which it is subject to control and supervision by Parliament: 1. It must perform its functions in a way consistent with any government policy orders that apply in relation to Australia Post under s 22 of the PGPA Act, any directions given by the Minister under s 49 of the APC Act, and Australia's obligations under any convention: APC Act, s 28; 2. The Auditor-General must audit and report on its compliance with performance standards that have been prescribed by regulation (APC Act, s 28D(1)) and give a copy of the report to the Minister, who must in turn lay a copy of the report before each House of Parliament: APC Act, s 28D(4) and (5); 3. It must prepare a corporate plan consistent with s 35 of the PGPA Act. In preparing the corporate plan, the Board must have regard to, among other things, "the need to maintain the extent of the Commonwealth's equity in Australia Post" and "the expectation of the Commonwealth that Australia Post will pay a reasonable dividend": APC Act, s 38(b) and (c); 4. The Minister has power to direct that the corporate plan be varied in various ways set out in s 40 of the APC Act; 5. It must prepare an annual report on its financial performance for presentation to the Parliament under s 46 of the PGPA Act which includes the matters set out in s 43 of the APC Act; 6. Despite s 50 of the APC Act providing that "[e]xcept as otherwise provided by or under this Act or any other Act, Australia Post and its Board are not subject to direction by or on behalf of the Australian Government", the Minister can give to the Board written directions in relation to the performance of its functions "as appear to the Minister to be necessary in the public interest": APC Act, s 49(1); 1. The Minister determined the amount of its initial capital under the APC Act (s 51(1)), which can be augmented by any amounts paid to Australia Post after the commencement of the Act from money appropriated by the Parliament for the purpose of providing capital (s 52(c)). The Board has a discretion to pay a dividend to the Commonwealth (s 54(1)) but, notwithstanding, the Minister can then either accept the Board's recommendation or direct the payment of a dividend: s 54(3); 2. If a person engages in conduct that involves an infringement of Australia Post's exclusive right to undertake its "reserved services", the Federal Court may order that a person pay a pecuniary penalty "to the Commonwealth": APC Act, s 30(A)(2); 3. The Board is appointed by the Governor-General on the nomination of the Minister (s 73(1)) and the Governor-General may terminate directors in certain circumstances: APC Act, s 79. Contrary indicia? 1. Australia Post acknowledges two provisions of the APC Act have the propensity to indicate that it is not 'the Commonwealth' within the meaning of s 75(iii) of the Constitution. 2. The first is s 90A of the APC Act, which provides that, for the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by the APC Act or any other law of the Commonwealth, or by a law of the State or Territory. 3. The second is that Australia Post is subject to taxation under the laws of the Commonwealth and the States and Territories (APC Act, s 63(1)). This was a relevant factor identified in Aboriginal Areas Protection Authority v Director of National Parks at [60]. 4. However, we accept Australia Post's submission that there is a difference between 'the Commonwealth' for the purposes of s 75(iii) of the Constitution and "the Crown in right of the Commonwealth" (Maguire v Simpson at 406 per Jacobs J; Re Residential Tenancies Tribunal of New South Wales; Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 458 (per McHugh J) and 464-465 (per Gummow J); [1997] HCA 36), the latter category being a subset of the former. 5. What is under consideration here is not whether a statute, such as the Australian Consumer Law (NSW), can bind a Commonwealth instrumentality, but whether that instrumentality is 'the Commonwealth' for the purpose of considering s 75(iii) of the Constitution. Relevantly, at the pertinent times, both ASIC and Air Services Australia were, like Australia Post, not entitled to complete immunity from taxation under their enabling legislation: s 139 of the Australian Securities and Investments Commission Act 2011 (Cth) (as at 15 July 2001); s 52(3) of the Air Services Act 1995 (Cth) (as at 5 December 1999). 6. We also acknowledge that the respondent is correct to submit that Australia Post carries on business of a far broader nature than simply the delivery of letters, which is the only aspect of its business in respect of which it has a statutory monopoly. We agree, though, with Australia Post's submission that it is necessary to have regard to its functions as a whole and that it cannot be said to be the Commonwealth for some of its business purposes but not for others. Conclusion 1. In our view, the proper characterisation of the APC Act and its effect is that Australia Post is 'the Commonwealth' for relevant purposes and it cannot be sued in this Tribunal. It meets all the criteria for that characterisation set out by McHugh J in Edensor and most of those identified by the plurality in that decision. Because of that conclusion, the order made by the Tribunal that Australia Post pay Lux the sum of $72.97 is of no legal effect. It should be quashed to make that clear. 2. Where the Tribunal lacks jurisdiction to hear and determine a matter on its merits due to federal jurisdiction being engaged, its Appeal Panel is also deprived of that jurisdiction. However, as the Tribunal retains anterior jurisdiction to determine the limits of its authority, and to determine that issue in the exercise of a conferral of State judicial power (Citta at [27]) we think it follows by necessary implication, having regard to the terms of ss 80 and 81 of the NCAT Act, that the Appeal Panel must have authority to review the exercise of that limited anterior jurisdiction and to make orders to give effect to the decision it makes in that regard, so long as it does so solely in relation to the issue of jurisdiction. In our view, doing so is the further exercise of judicial power conferred by the State of NSW. Otherwise, the Appeal Panel could not give effect to its decision where, as here, it leads to the conclusion that an order made at first instance should be quashed. A recalcitrant respondent could then seek to enforce an order made at first instance, leaving the appellant with nothing other than a hollow outcome from the appeal and the need to seek an order from a Court to avoid enforcement. 3. We have no direct authority for that conclusion (the issue will only arise where an appeal is available from a State Tribunal at first instance to a body other than a Chapter III Court), however we are satisfied it is consistent with the view taken by the Appeal Panel in the proceedings that progressed on appeal to culminate in Wilson NSWCA: Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311 (Wilson AP) and with the analysis of the Tribunal's anterior jurisdiction in Wilson NSWCA and Citta. Transfer to a Court? 1. No doubt with an eye to the amount in issue, Lux did not seek to have its claim transferred to a Court if we decided the Tribunal lacked jurisdiction, despite the potential availability of that process: NCAT Act, Sch 4, cl 6; Wilson AP at [56]. Costs of the appeal 1. Australia Post was given leave to be legally represented on condition that it may not recover costs in the appeal. Orders 1. Our Orders are as follows: 1. The decision at first instance is quashed and proceedings Gen 23/13621 are dismissed as the Tribunal lacks jurisdiction; 2. The appeal is otherwise dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 01 December 2023