Burns v Corbett 2018 How this case may affect you

5 Jun, 2018

On 18 February 2018, the High Court of Australia held in Burns v Corbett [2018] 15 (‘Burns’) that the Civil and Administrative Tribunal of New South Wales (NCAT) did not have jurisdiction to deal with matters involving parties from different States.

Without embarking on an examination of the Constitutional arguments advanced in the decision, suffice it to say that, federal jurisdiction could not be conferred on a Tribunal as it was not a ‘Court of the State’.

Curiously, the decision in Burns proceeded on the basis that at the outset all parties being represented in the hearing agreed that NCAT was not a Court.

The decision has had wide ramifications in New South Wales, and this is now also having similar ramifications in South Australia. Many real estate agents in South Australia are reporting that the South Australian Civil and Administrative Tribunal (SACAT) is now refusing to hear applications where one of the parties to the proceedings is a resident of a State other than South Australia.

The resulting problem is that landlords who may be resident in another State have nowhere to seek redress…

The resulting problem is that landlords who may be resident in another State have nowhere to seek redress as SACT is given exclusive jurisdiction to hear and determine a tenancy dispute (Section 24(1)(a) Residential Tenancies Act 1995 (SA)).

New South Wales has introduced a ‘quick fix’ to the problem, namely to give applicants in Tribunal proceedings the ability to seek leave of the Local Court if the Tribunal states that it does not have jurisdiction to determine a matter.

It is understood that SACAT are now saying ‘leave it for a few weeks’ to enable the problem to be resolved.

However, there may be another solution.

Recently, the New South Wales Civil and Administrative Appeal Panel considered two appeals in relation to residential tenancy matters. In the decision of Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45, the Appeal Panel acknowledged the decision in Burns however questioned the initial assumption of that case that NCAT could not be considered to be a Court, despite it being referred to as a Tribunal.

It gave a lengthy and reasoned judgment, the result of which was that it unanimously held that NCAT should be considered a ‘court of a State’ and as such was invested with federal jurisdiction and could determine disputes between residents of different states.

Given the fact that the legislation establishing and governing SACAT and NCAT are similar in form and substance, there should be no reason why as similar argument could not be advanced in South Australia to the effect that SACAT is for the purposes, at least in residential tenancies matters, a ‘court of a State’ and there able to exercise federal jurisdiction.

For further information please contact Barclay MIS on 1300 883 916 or clientsupport@barclaymis.com.au

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