Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 Hearing dates: 4, 25 September 2018 and 4 October 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Seiden SC, Principal Member Decision: (1) The time to file the Notice of Appeal is extended to 26 July 2018. (2) The appeal is allowed. (3) The order of 16 June 2018 for removal of Rex from the village is set aside and the application is dismissed. (4) If either party seeks to apply for costs, the parties are to file an application within 14 days of these orders. (5) Any costs application is to contain supporting material and submissions, including as to the jurisdiction of the Appeal Panel to award costs in light of the reasons herein and submissions in relation to whether any costs application should be determined on the papers. (6) The opposing party to any costs application is to provide submissions and supporting material within 7 days of the date of service of the costs application. The submissions are to include submissions as to whether the application should be determined on the papers. Catchwords: JURISDICTION – Constitution – federal matter – power to resolve vested in court of a State – Tribunal has no jurisdiction to resolve. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Commonwealth Constitution Disability Discrimination Act 1992 (Cth) Judiciary Act 1903 (Cth) Retirement Villages Act 1999 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15; 92 ALJR 423 Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Ffrost v Stevenson (1937) 58 CLR 528; [1937] HCA 41 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; [1983] HCA 31 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; [1980] HCA 32 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654; [1997] HCA 40 Re Wakim (1999) 198 CLR 511; [1999] HCA 27 Smith v Smith (1986) 161 CLR 217; [1986] HCA 36 ZHA v ZGZ [2018] NSWCATAP 249 Texts Cited: Andrew Greenwood, A Paper Concerning Aspects of Federal Jurisdiction (19 August 2017), TC Beirne School of Law, University of Queensland Category: Principal judgment Parties: John Murphy (Appellant) Trustees of Catholic Aged Care Sydney (Respondent) Representation: Counsel: E Finnane (Appellant) H Grace (Respondent)