Sunol v Collier [2012] NSWCA 14

Sunol v Collier [2012] NSWCA 14

The Administrative Decisions Tribunal lacks jurisdiction to determine constitutional questions as it is not a 'court of the State' for the purposes of federal judicial power under the Constitution, and consequently, referral of such constitutional questions to the Supreme Court under s 118 of the Administrative Decisions Tribunal Act 1997 (NSW) is inappropriate. Each of the referred questions was therefore inappropriate to answer; the correct procedure is for the applicant to seek appropriate relief by amended summons, rather than referral of constitutional questions by the Tribunal.

Parties
Applicant: John Christopher Sunol; First Respondent: Henry William Collier (Estate of the late Henry William Collier); Second Respondent: Administrative Decisions Tribunal, Appeal Panel; Intervenor: Attorney General of New South Wales
Jurisdiction
Australia
Judgment Date
20 February 2012
Procedural Posture
Appeal / Interim Judgment on Procedural Question Referred From Tribunal
Outcome
Directions made; referral of constitutional questions by Tribunal held inappropriate; applicant directed to file amended summons or notify parties within 14 days.
Legal Topics
Tribunal Jurisdiction, Referral of Question of Law, Federal Judicial Power, Constitutional Validity, Implied Freedom of Political Communication
Administrative Law Constitutional Law Civil Procedure Tribunal Jurisdiction Referral of Question of Law Federal Judicial Power Constitutional Validity Implied Freedom of Political Communication

Case Brief

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Parties

John Christopher Sunol

Applicant

Henry William Collier (Estate of the late Henry William Collier)

First Respondent

Administrative Decisions Tribunal, Appeal Panel

Second Respondent

Attorney General of New South Wales

Intervenor

Procedural Posture

Appeal / Interim Judgment on Procedural Question Referred From Tribunal

Legal Issues

  1. 1 Whether the Administrative Decisions Tribunal has jurisdiction to determine constitutional questions
  2. 2 Whether constitutional questions can be referred by the Tribunal to the Supreme Court under s 118 of the Administrative Decisions Tribunal Act 1997 (NSW)
  3. 3 Whether s 49ZT and related sections of the Anti-Discrimination Act 1977 (NSW) should be read down to conform with the implied constitutional freedom of communication about government and political matters

Ratio Decidendi

The Administrative Decisions Tribunal lacks jurisdiction to determine constitutional questions as it is not a 'court of the State' for the purposes of federal judicial power under the Constitution, and consequently, referral of such constitutional questions to the Supreme Court under s 118 of the Administrative Decisions Tribunal Act 1997 (NSW) is inappropriate. Each of the referred questions was therefore inappropriate to answer; the correct procedure is for the applicant to seek appropriate relief by amended summons, rather than referral of constitutional questions by the Tribunal.

Court Disposition

Directions made; referral of constitutional questions by Tribunal held inappropriate; applicant directed to file amended summons or notify parties within 14 days.

Orders

  • Direct that the applicant, within 14 days of the date of this judgment, file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal.
  • In the event that the applicant does not seek to take such a step, direct that the applicant notify the Court and the Attorney General within the same period, namely 14 days of the date of this judgment.