Chapter III or not Chapter III? That is the question (or not)...

Although the High Court is yet to hand down its decision concerning the jurisdiction of state tribunals in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (Burns), the New South Wales Civil and Administrative Tribunal Appeal Panel (the Panel) has come to its own conclusion.

The Panel held in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 (Gatsby) that the New South Wales Civil and Administrative Tribunal (the Tribunal) is a “Court of a State” and can therefore exercise jurisdiction to determine matters between residents of two states.

Whilst at first blush this seems to deal with the same issues as those in Burns on which the High Court is reserved, there is an important difference.


A NSW resident commenced proceedings in the Supreme Court of NSW for contempt of court after a Victorian resident failed to make a public and private apology ordered by the former Administrative Decisions Tribunal (now the Tribunal). In answer it was argued that the Tribunal did not have jurisdiction, relying on the Victorian residency.

Section 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) provides, relevantly, that Courts of the State have federal jurisdiction in all matters in which the High Court has original jurisdiction. Pursuant to s 75(iv) of the Constitution, the High Court has original jurisdiction in all matters “between States, or between residents of different States, or between a State and a resident of another State”.

It was common ground in Burns that the Tribunal was not a Court of State and that the Tribunal was exercising state judicial power.

The Court of Appeal held that a state tribunal which is not a “Court of a State” is unable to exercise judicial power to determine matters between residents of two states, because the state law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act (when read with s 39A) of all such jurisdiction in state courts.


The distinction in Gatsby is that the question for the Panel was whether the Tribunal is a Chapter III Court.

The case involved two separate residential tenancy disputes brought under the Residential Tenancies Act 2010 (NSW) between landlord and tenant. In each dispute, one party resided in Queensland and the other party resided in New South Wales. Applications were made in both disputes to the Tribunal.

In each matter, notices of appeal were filed against the Tribunal’s original decision and the issue of whether the Tribunal had authority to hear and determine the proceedings came to the fore. In making its determination, the Panel dealt with two questions:

  1. Was the Tribunal exercising administrative or judicial power when determining the proceedings?
  2. Is the Tribunal a Court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act?

With regards to question (a), the Panel rejected submissions that the powers exercised by the Tribunal were non-judicial, due to matters not necessarily being determined in accordance with law and that non-monetary orders handed down by the Tribunal lacked sufficient enforceability and finality. Instead, the Panel found the manner in which the Tribunal exercised its powers was consistent with the exercise of judicial power.

On question (b), the Panel held that the Tribunal is a Chapter III Court, having regard to:

  • it meeting the requirements of the defining characteristics of a court, including if it is sufficiently independent and impartial, applies procedural fairness, adheres to the open court principle and provides reasons for its decisions
  • Tribunal Members being “judges in substance”
  • a “balance sheet approach” would lead to the determination that the Tribunal is in fact a Chapter III Court
  • the Tribunal being a court of record.

What does this mean?

The effect of the Panel’s decision is that, for the time being, the Tribunal can hear and determine matters between a resident of New South Wales and a resident of a different state (there is also the legislative solution providing the Local and District Courts with jurisdiction). We would expect that Gatsby will be appealed. It remains to be seen how the High Court will view this development given that it remains reserved in Burns and having regard to the agreed position in that case.