Supreme Court New South Wales Medium Neutral Citation: Burns v Corbett (No 2) [2016] NSWSC 612 Hearing dates: 4 May; 12 July 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1)Under Rule 28.2 Uniform Civil Procedure Rules 2005, order that the following questions be determined separately before any further hearing of the contempt charges: (a) Did the Administrative Decisions Tribunal have jurisdiction to resolve the complaint under s 49ZT Anti-Discrimination Act 1977 (NSW) made by the plaintiff against the defendant? (b) Did the Appeals Panel of the NSW Civil and Administrative Tribunal have jurisdiction to resolve the said complaint? (c) Is the judgment obtained by the filing of the certificate in the registry of the Supreme Court in accordance with s 114 of the Anti-Discrimination Act 1977 (NSW) valid and enforceable against the defendant even if the orders of the relevant Tribunal the subject of the certificate are void or voidable? (2) Under Rule 1.21 UCPR, remove the decision on the separate question to the Court of Appeal; (3) List the separate questions for directions before the Registrar, Court of Appeal at 9:00 am on 1 August 2016; (4) List the proceedings for mention at 9:00 am on 25 November 2016 before Campbell J; (5) Costs reserved. Catchwords: ADMINISTRATIVE LAW– contempt proceedings from judgment enforcing decision of the NCAT – where question of validity of judgment due to question of jurisdiction of the NCAT – where similar question may be referred to the Court of Appeal PROCEDURE – adjournment of proceedings– where remittal of separate questions to the Court of Appeal– further hearing adjourned until questions determined Legislation Cited: Anti-Discrimination Act 1977 (NSW) – s 114, 49ZT Civil Administrative Tribunal Act 2013 (NSW) – s 54 Judiciary Act 1903 (Cth) – s 78B Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) – r 28.2 Cases Cited: Burns v Corbett [2013] NSWADT 227 Corbett v Burns [2014] NSWCATAP 42 Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619 Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77 Wishart v Frazer [1941] HCA 8; 64 CLR 470 Category: Procedural and other rulings Parties: Gary Burns (Plaintiff) Tess Corbett (Defendant) Representation: Counsel: K Madgwick (Plaintiff) J Loxton(Defendant) Solicitors: Allens Linklater (Plaintiff) Robert Balzola and Associates (Defendant) File Number(s): 2014/280109 Judgment 1. I am part heard in proceedings for contempt of court. The statement of charge contains two counts of alleged contempt. Both are based upon non-compliance with a judgment of this court entered on 24th September 2014. The judgment was entered under s 114 Anti-Discrimination Act 1977 (NSW) which relates to the enforcement of non-monetary orders made under that Act. So far as is material, the section provides: "(2) For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms. (3) A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court" 1. In general terms, the order required the defendant to publish an apology in the Sydney Morning Herald and to apologise privately to the plaintiff by letter for conduct which was found to be in breach of s 49ZT of the Anti-Discrimination Act. 2. For reasons it is unnecessary to detail now, the time for compliance with the orders was extended by consent to 13th November 2015. 3. The first count in the statement of charge alleges failure to publish the public apology; and the second count the failure to provide the private letter of apology. 4. The defendant does not dispute that she has failed to comply with the judgment of this court. Rather she contests the validity of the order originally made on 15th October 2013 by the former Administrative Decisions Tribunal (Burns v Corbett [2013] NSWADT 227) and confirmed on appeal on 14th August 2014 by an Appeal Panel of the Civil and Administrative Tribunal (Corbett v Burns [2014] NSWCATAP 42). In its reasons for judgment at [2] the Appeal Panel said: "Because these proceedings are "pending proceedings" the provisions of the Administrative Decisions Tribunal Act 1997 (NSW) continue to apply: Civil and Administrative Tribunal Act 2013 (NSW): Schedule 1 Clause 6 and 7." Notwithstanding the express statutory provisions continuing the operation of the repealed legislation a question may arise involving the principle in Wishart v Frazer [1941] HCA 8; 64 CLR 470 that the orders now should be taken to be orders of the Civil and Administrative Tribunal. This may be relevant to the first issue referred to below at [11]. 1. The questions going to validity arise out of facts which are agreed, which I will set out in narrative form in the paragraphs which follow. 2. The public acts which the plaintiff relied upon to base his complaint under s 49ZT Anti-Discrimination Act occurred on January 2013. Then, and at all times since, the plaintiff resided in New South Wales, and the defendant in Victoria. 3. As at January 2013, the defendant was a candidate endorsed by Katter's Australian Party for the federal seat of Wannon, Victoria. In an interview with a journalist she made statements to the effect that homosexuals were in the same category as paedophiles. The journalist was from the Hamilton Spectator, a local or regional newspaper published within the federal seat which the defendant was contesting. A story based upon her interview was published on the front page of the paper-edition of that newspaper on 22nd January 2013. The substance of her statements were picked up and republished on the Sydney Morning Herald website on 23rd January 2013 and on the ABC news website on 24th January 2013. 4. In its decision of 15th October 2013, the Administrative Decisions Tribunal (at [31]) said: "If the only instance of communication of Ms Corbett's statements to the public had been in the article appearing on 22nd January 2013 in the Hamilton Spectator, the Tribunal would not, we believe, have had jurisdiction to deal with this matter. This is because the relevant "public act" would have been committed wholly in Victoria. But all of the instances of republication that we have outlined involve communication to the public in New South Wales." The instances of republication include those on the websites of the Sydney Morning Herald and the ABC. 1. The defendant's case is that she cannot be guilty of contempt because she is entitled to have the judgment entered under s 114 Anti-Discrimination Act set aside ex debito justitiae because the orders of the Tribunal are invalid for want of jurisdiction. 2. The issues going to jurisdiction as currently refined are as follows: 1. Was the purported exercise of jurisdiction by the Administrative Appeals Tribunal an impermissible exercise of federal judicial power in the diversity jurisdiction of the High Court by a state tribunal which was not a state court; 2. Whether the republication of her comments by the Sydney Morning Herald and the ABC were public acts attributable to her for the purposes of s 49ZT in circumstances where a local resident contesting a federal seat wholly within the State of Victoria granted an interview to a journalist from a regional newspaper published locally; 3. Whether the initiating process in the Tribunal was required to be served in conformity with the Service and Execution of Process Act 1992 (Cth) and if not so served, whether that consideration invalidated the proceedings, even if the Tribunal otherwise had jurisdiction to determine them. 4. Whether the judgment obtained by the filing of the certificate in the registry of the Supreme Court in accordance with s 114 of the Anti-Discrimination Act 1977 (NSW) is valid and enforceable against the defendant even if the orders of the relevant Tribunal the subject of the certificate are void or voidable. 1. As I raised with the parties when the matter was mentioned on 4th May 2016, similar questions concerning the Civil and Administrative Tribunals jurisdiction may be referred to the Court of Appeal under s 54 Civil Administrative Tribunal Act 2013 (NSW). 2. It may be that question 1 is governed by the previous decisions of the Court of Appeal concerning the jurisdiction of the Administrative Decisions Tribunal in Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77 and Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619. It was held in those cases that the Administrative Decisions Tribunal is not a court of the State for the purposes of the Australian Constitution and federal legislation investing State courts with federal jurisdiction. These decisions may anticipate the first question. 3. It seems to me however, that questions 1 to 4 are capable of resolving these proceedings entirely if resolved in favour of the defendant, and there is merit in ordering that they be decided separately in advance of any further hearing of the contempt charges. And I propose to make an order in that regard under r 28.2 of the Uniform Civil Procedure Rules 2005. 4. There can be no question that questions 1 to 4 are questions of law of some importance. Notwithstanding that the Administrative Decisions Tribunal no longer exists, the matters arising are such that they may involve questions arising under the Constitution which attract the operation of s 78B Judiciary Act 1903 (Cth). As the Court of Appeal is likely to be considering related questions in other matters, I am of the view that the interest of justice would be better served by the removal of the separate questions into the Court of Appeal for consideration by it concurrently with the other matters arising. 5. To leave appropriate procedural flexibility in the matter, I think it sufficient that the separate question be framed simply in terms of the jurisdiction of the Administrative Decision Tribunal. 6. My orders are: 1. Under Rule 28.2 Uniform Civil Procedure Rules 2005, I order that the following question be determined separately before any further hearing of the contempt charges: 1. Did the Administrative Decisions Tribunal have jurisdiction to resolve the complaint under s 49ZT Anti-Discrimination Act 1977 (NSW) made by the plaintiff against the defendant? 2. Did the Appeals Panel of the NSW Civil and Administrative Tribunal have jurisdiction to resolve the said complaint? 3. Is the judgment obtained by the filing of the certificate in the registry of the Supreme Court in accordance with s 114 of the Anti-Discrimination Act 1977 (NSW) valid and enforceable against the defendant even if the orders of the relevant Tribunal the subject of the certificate are void or voidable? 1. Under Rule 1.21 UCPR, remove the decision on the separate question to the Court of Appeal; 2. List the proceedings for directions before the Registrar, Court of Appeal at 9:00 am on 1 August 2016. 3. List for mention at 9:00 am on 25 November 2016; 4. Costs reserved. ********** 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: 26 July 2016