Local Court New South Wales Medium Neutral Citation: TR Keller v Emirates [2015] NSWLC 2 Hearing dates: 6 February 2015 Decision date: 20 February 2015 Jurisdiction: Civil Before: Assessor Olischlager Decision: Motion to transfer proceedings to the General Division dismissed. Catchwords: NOTICE OF MOTION - transfer to general division - conferral of federal jurisdiction - whether small claims division a tribunal or court. Legislation Cited: Civil Aviation (Carriers' Liability) Act 1959 (Cth) Corporations Act 2001 (Cth), s 1337E Judiciary Act 1903 (Cth), s 39 Local Court Act 2007 (NSW), Part 3, Divs 1 and 2; ss 9, 29, 30 Local Court Rules 2009 (NSW), Part 2, Div 2, r 2.3(1) Local Courts Act 1982 (NSW) The Constitution, ss 71, 77 Cases Cited: Charafeddine v Morgan [2014] NSWCA 74 Commonwealth v Hospital Contribution Fund of Australia (HCF case) (1982) 150 CLR 49 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Kotsis v Kotsis (1970) 122 CLR 69 Le Mesurier v Connor; sub nom Le Mesurier v Western Australian Trustees, Executor and Agency Co Ltd (1929) 42 CLR 481 Livanis v Corner Office Carlingford Pty Ltd [2009] NSWDC 38 McClymont v The Owners Strata Plan No 12139 [2009] NSWSC 276 Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/as Ascot Freightlines & Anor [2003] NSWCA 146; 57 NSWLR 282 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's [2006] NSWCA 185; 66 NSWLR 77 Waterside Workers Federation of Australia v JW Alexander Ltd [1918] HCA 56; 25 CLR 434 Category: Procedural and other rulings Parties: TR Keller (Respondent/Plaintiff) Emirates (Applicant/Defendant) Representation: Teddington Legal (Solicitor for Respondent/Plaintiff) Norton White (Solicitor for Applicant/Defendant) File Number(s): 2014/00167487 Publication restriction: Nil JUDGMENT 1. The defendant makes an application to transfer the proceedings to the General Division of the Local Court. The application is based on concerns regarding the jurisdictional authority of the Small Claims Division of the Local Court to hear and determine a claim involving commonwealth legislation. 2. The issues raised by this application have broader implications in terms of the operations of the Small Claims Division. The Small Claims Division is often required to determine matters involving commonwealth legislation; for example, claims relying on the Australian Consumer Law. The argument by the applicant in this motion, if successful, would render the Small Claims Division unable to deal with any claim involving commonwealth legislation. 3. The nature of the claim is as follows. The plaintiff asserts that he booked a passenger flight on the defendant airline from Bangkok to Sydney. The plaintiff checked-in baggage that included a number of sculptures. Those sculptures are alleged to have been damaged during transit and the plaintiff claims damages of $4,714.32. 4. The defendant has filed a defence which, inter alia, pleads reliance on the provisions of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). 5. The power to transfer proceedings from the Small Claims Division to the General Division of the Local Court is contained in Division 2 of Part 2 of the Local Court Rules 2009 (NSW). Rule 2.3(1) of the Local Court Rules provides: "2.3 Transfer of proceedings from Small Claims Division to General Division: complexity, difficulty or importance of matters in dispute (1) The Court may, on the application of a party or of its own motion, transfer proceedings to the Court's General Division if, at any time before judgment is given, the Court is of the opinion that the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought more properly to be heard in the Court's General Division." 1. The applicant does not assert that the nature of the proceedings is too complex or difficult to be determined in the Small Claims Division of the Local Court. Rather, the applicant relies on the discretion conferred by r 2.3 of the Local Court Rules to transfer proceedings that are not appropriate to be heard and determined by the Small Claims Division of the Local Court. 2. The power to transfer Small Claims Division proceedings to the General Division is discretionary. Ordinarily, the power to transfer proceedings is done on grounds that the informal processes of the Small Claims Division are not suited to determine the proceedings or the parties wish to resolve an important legal issue in a forum that allows a right of appeal on a question of law. The power to transfer proceedings to the General Division is not one that has been relied upon for jurisdictional reasons. Except with respect to different monetary jurisdictional limits, the jurisdiction conferred by Divs 1 and 2 of Part 3 of the Local Court Act 2007 (NSW) on the Small Claims Division is in identical terms to the General Division. 3. As noted by McCallum J in McClymont v Owners Strata Plan No 12139 [2009] NSWSC 276 at [19], "[t]he Small Claims Division of the Local Court does not lack jurisdiction to hear disputes which are complex or difficult." 4. Notwithstanding that r 2.3 of the Local Court Rules is not intended to address jurisdictional concerns, the Court is satisfied that the rule is sufficiently broad to allow a transfer where jurisdiction limitations exist. Jurisdictional issues are relevant to the question of the importance of a matter. 5. In the present case, the applicant raises concern that the features of the Small Claims Division of the Local Court differ from ordinary courts to the extent that it cannot be considered a Court. As the defence pleaded relies on a right provided under commonwealth legislation, the applicant submits that it is arguable that the Small Claims Division of the Local Court cannot exercise the judicial power of the Commonwealth. The applicant seeks to transfer the proceedings to the General Division to avoid any uncertainty in the jurisdiction of the Small Claims Division of the Court. 6. In support of the motion, the applicant refers to three authorities. In Waterside Workers Federation of Australia v JW Alexander Ltd [1918] HCA 56; 25 CLR 434 the High Court held that the Commonwealth Court of Conciliation and Arbitration was not a court for the purposes of s 71 of the Constitution and that it was not capable of exercising the judicial power of the Commonwealth. The decision is relevant in demonstrating that the naming of a body as a court is not determinative of the issue of whether it is a court or a tribunal. The question of whether or not a body is a court or a tribunal is a matter that requires a critical analysis of the essential nature of the body. 7. In Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/as Ascot Freightlines & Anor [2003] NSWCA 146; 57 NSWLR 282 the NSW Court of Appeal was required to consider whether the Workers' Compensation Commission was a court or a tribunal. Ipp JA, with whom Spigelman CJ and Handley JA agreed, concluded that it was not a court. The Court of Appeal weighed up the relevant features of the Commission. Relevantly, Ipp JA noted that that the Commission included Arbitrators who were not required to hold legal qualifications and were appointed by the President of the Commission. Ipp JA also noted at [49] that, "...proceedings before the Commission are to be conducted with as little formality as reasonably possible..the Commission is not bound by the rules of evidence. While it is not unknown for like provisions to apply to a court, they are unusual features of a court's procedures." 8. In Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495, the High Court determined that it was beyond the constitutional power of the Parliament of the Commonwealth to pass legislation which required a state court to exercise federal jurisdiction in private. The majority of the High Court held that the performance of the functions of the Court in public was an essential aspect of the character of the court and it was not open for the Commonwealth to alter the character of a state court. 9. The applicant submits that these decisions require the judicial power of the Commonwealth to only be exercised by a court. The Small Claims Division of the Local Court bears some similarity to the Workers Compensation Commission in that proceedings are conducted informally and the rules of evidence do not apply. Furthermore, the Small Claims Division provides for the appointment of Assessors who are not judicial officers to hear and determine proceedings. The applicant submits that these features support the view that the Small Claims Division of the Local Court is a tribunal rather than a court. Analysis 1. The Civil Aviation (Carrier's Liability) Act creates rights and obligations between airline companies and passengers. Jurisdiction to deal with matters under that Act is conferred upon state courts by operation of s 77 of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). 2. Section 39(2) of the Judiciary Act invests federal jurisdiction in "...several Courts of the States … within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise…" 3. In Kotsis v Kotsis (1970) 122 CLR 69, the High Court considered the scope of s 39 of the Judiciary Act. It held that the Commonwealth jurisdiction invested in the Supreme Court could only be exercised by the judges of the Court. 4. That decision was overruled in Commonwealth v Hospital Contribution Fund of Australia (HCF case) (1982) 150 CLR 49 where the High Court held that "courts of the States" meant the court "as an institution" rather than the persons of which it is composed. Accordingly, it was held that commonwealth jurisdiction could be exercised by a Master or Registrar provided that those officers remained under the supervision of the court. The approach of the High Court recognises the difficulty that might be created if jurisdiction was determined according to qualifications of the persons that constitute the body. As noted by Wilson J at p 73, "[i] is highly desirable that, subject to any special limitation which may be imposed on the investiture by the Parliament...the organization of the State court relative to the exercise of its jurisdiction be the same regardless of whether it be [s]tate or federal in origin." 5. The decision in the HCF case affirms the proposition that the Commonwealth must take the State Court as it finds it. In Le Mesurier v Connor; sub nom Le Mesurier v Western Australian Trustees, Executor and Agency Co Ltd (1929) 42 CLR 481 at pp 495 to 496, Knox CJ, Rich and Dixon JJ cited Isaacs J in R v Murray and Cormie (1912) 22 CLR at p. 452, stating that, "[t]he Constitution, by chapter III, draws the clearest distinction between Federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain 'State Courts'". 6. The recognition by the High Court that "courts of the State" is a reference to an institution also means that it is inappropriate to attempt to consider particular divisions of an institution in isolation to determine whether that particular division meets the description of "courts of the State". 7. In Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's [2006] NSWCA 185; 66 NSWLR 77 the Court of Appeal disapproved of the approach taken in Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 where O'Connor DCJ held that the Equal Opportunity Division of the Tribunal was a court for the purposes of s 39(2) of the Judiciary Act. The Court of Appeal held it was not permissible to treat a Division of the tribunal as a separate organisation. The question to be determined was whether the body as a whole is a "court of the State". 8. The Small Claims Division is part of the Local Court. Section 9 of the Local Court Act provides: "9 Jurisdiction (cf LCA 1982, section 7) The Court has: (a) a civil jurisdiction consisting of the jurisdiction conferred on it by Part 3, and (b) a special jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to proceedings to which Part 4 applies, and (c) a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings." 1. Section 29(1) of Division 1 of Part 3 of the Local Court Act relevantly provides: "29 Jurisdictional limit of Court (1) For the purposes of this Part, the jurisdictional limit of the Court is: (a) $100,000, when sitting in its General Division, and (b) $10,000, when sitting in its Small Claims Division." 1. The jurisdiction of the Small Claims Division may be exercised by either a Magistrate or an Assessor. 2. Accordingly, it is necessary to consider the Local Court as a whole rather than considering the Small Claims Division as a separate entity. 3. The Local Court is undoubtedly a "court of the state" within the meaning of s 39(2) of the Judiciary Act. Its full title is the Local Court of New South Wales. The Local Court is a court of record. It has both a criminal and civil jurisdiction. The civil jurisdiction is state-wide and deals generally with any monetary claim within monetary limits. The Court has power to finally determine proceedings and may enforce its own judgments. The Local Court is composed primarily of judicial officers. As at 31 December 2013 there were 123 full-time magistrates and 8 part-time magistrates sitting in the Local Court. There is one full-time and two part-time Local Court Assessors. 4. The informal procedures of the Small Claims Division of the Local Court do not detract from the essential character of the Local Court. While it might be said that such informality is not an ordinary feature of a court, in modern court management, it is increasingly common for Australian courts to tailor processes specifically to cater for minor claims. Such an approach is consistent both with the Court's overriding objective to "achieve the just, quick and cheap" resolution of disputes and maintaining proportionality between the amount in dispute and the cost of proceedings. 5. Although it is conceded that the Small Claims Division adopts certain procedures that are not ordinarily features of a court there remains many features that are consistent with the features of a court. They include: 1. The conferral of general state-wide jurisdiction to deal with monetary claims up to $10,000 2. The decisions of the Division are final and conclusive 3. The decisions must be supported by reasons 4. The decisions of the Division can give rise to issue estoppel (see Charafeddine v Morgan [2014] NSWCA 74) 5. The Division has the power to enforce its judgments and orders 6. The requirement to conduct proceedings open to the public 7. The requirement to determine proceedings according to law 1. In my view the use of Assessors for a limited and specialised purpose does not affect the essential character of the Local Court as a court within the meaning of the Judiciary Act. Assessors are legally qualified and subject to judicial review. 2. In Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 the High Court was required to consider the validity of s 37 of the Supreme Court Act 1970 (NSW) which allows for the appointment of acting judges for periods of up to 12 months. The joint judgment of Gummow, Hayne and Crennan JJ concluded that institutional independence and impartiality of a court is not inevitably compromised by acting judges. The appointment of acting judges does not of itself affect the essential character of the Court. 3. The appointment of non-judicial officers is a ubiquitous feature of the historical development of courts of summary jurisdiction. At the time of federation, Courts of Petty Sessions (now the Local Court) were composed of justices of the peace and stipendiary magistrates. At the time of federation many magistrates were not legally qualified and it was only on 1 July 1955 that legal qualifications became mandatory for appointment. Furthermore, magistrates did not achieve independence from the public service until the introduction of the Local Courts Act 1982 (NSW). Notwithstanding these substantial constraints on independence, Courts of Petty Sessions were vested with federal jurisdiction. The joint judgment in Forge v ASIC at [82] acknowledges the apparent incongruity: "Both before and long after federation, courts of summary jurisdiction have been constituted by Justices of the Peace of by stipendiary magistrates who formed part of the colonial or State public services. As public servants, each was generally subject to disciplinary and like procedures applying to all public servants. Thus, neither before nor after federation have all State courts been constituted by judicial officers having the protections of judicial independence afforded by provisions rooted in the Act of Settlement and having as their chief characteristics appointment during good behaviour and protection from diminution in remuneration. That being so, if the courts of the States that were, at federation, considered fit receptacles for the investing of federal jurisdiction included courts constituted by public servants, why may not the Supreme Court of a State be constituted by an acting judge?" 1. The NSW Parliament has expressly conferred jurisdiction upon the Small Claims Division to deal with disputes arising from company title home unit disputes pursuant to s 30(2)(c) of the Local Court Act. The source of this jurisdiction is s 1337E of the Corporations Act 2001 (Cth). The conferral of jurisdiction on the Small Claims Division is an acknowledgment by the legislature that federal jurisdiction is capable of being exercised by the Small Claims Division. While s 35(1A) of the Local Court Act requires disputes involving company title disputes to be only exercised by a magistrate, it would appear that this is an unnecessary restriction in light of the principle that the Commonwealth, when vesting federal jurisdiction, must take state courts as they find them. 2. Finally, it is noted that in Livanis v Corner Office Carlingford Pty Ltd [2009] NSWDC 38 Goldring DCJ held that the Small Claims Division of the Local Court, when constituted by an assessor, is not an inferior court, but rather should be regarded as being a type of statutory tribunal. That decision is distinguishable from the present case on the basis that Goldring DCJ was considering the character of the Small Claims Division in the context of determining the scope of review available for judicial error rather than in the context of s 39 of the Judiciary Act. The approach taken by Goldring DCJ was to consider the nature of the Small Claims Division as a separate entity rather than as part of the Local Court. The decision suggests that rights of judicial review vary according to the vagaries of who is sitting in the Small Claims Division. This appears inconsistent with the approach of the Court of Appeal in Trust Company of Australia Ltd t/as Stockland Property Management v Skiwing Pty Ltd t/as Café Tiffany's. Given that it is not a direct authority on the question of the investiture of federal jurisdiction, the Court is not bound to follow the view expressed by the District Court. 3. I am satisfied that there is no jurisdictional impediment to these proceedings being heard and determined in the Small Claims Division. Motion dismissed. Assessor Olischlager Local Court 20 February 2015 ******** 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: 24 March 2015