NCAT has no jurisdiction for disputes between Interstate parties

Burns v Corbett [2018] HCA 15

The effect of Burns v Corbett is that NCAT[1] does not have jurisdiction over matters between residents of different States of Australia.   The reason is constitutional; NCAT is not a “court of the State” for the purposes of Ch III of the Constitution.   The High Court’s decision unanimously dismissed the appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Beazley P and Leeming JA).

Factual history

Mr Burns (a resident of New South Wales) is an LBGTI activist.  He claimed that statements vilifying homosexuals had been made by Ms Corbett (a resident of Victoria) and Mr Gaynor (a resident of Queensland). He alleged they were contrary to the Anti-Discrimination Act 1977 (NSW).[2]   Mr Burns complained to the Anti-Discrimination Board of New South Wales.

His complaint against Ms Corbett was referred to the ADT[3] (the predecessor of NCAT).  His complaint against Mr Gaynor was referred to NCAT.

Eventually, after various appeals and interlocutory applications, the matters culminated in the Court of Appeal of New South Wales. It considered the jurisdictional issues. The effect of the NSWCA decision was that Mr Burns did not have standing in NCAT for either of the complaints against Ms Corbett or Mr Gaynor.


The High Court’s reasoning is constitutional; by examining the text, structure and purpose of the Constitution, the Court held that Ch III of the Constitution (establishing the federal Judicature) compelled their conclusion.

Section 75(iv) provides that the High Court has original jurisdiction in all matters between residents of different States.  Section 76 of the Constitution empowers the Commonwealth Parliament to confer additional original jurisdiction on the High Court to determine other kinds of matters.  Section 77 empowers the Commonwealth Parliament to make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States, and investing State courts with federal jurisdiction.

The High Court recognised the implied constitutional constraint on State legislative power.  As a result, a State law (such as the legislation creating NCAT)[4] is invalid to the extent that it purports to confer judicial power in respect of any of the matters in ss 75 and 76 of the Constitution on a power or body (such as NCAT) that is not one of the “courts of the States”.   Were it not, the Constitutional structure would be undermined because it would enable a State Parliament to confer adjudicative authority regarding matters inin ss 75 and 76 on a State tribunal that is not a State court.


State tribunals (such as NCAT) that do not have the status of a court do not have jurisdiction to adjudicate disputes between parties from different states of Australia.  This could have wide ramifications, for example, in the context of building and property disputes where it is not uncommon for one or more of the parties to be resident of another State.

Practitioners should be mindful of jurisdictional and choice of forum issues when confronted with facts concerning interstate matters, in particular, interstate parties.

[1]  Civil and Administrative Tribunal of New South Wales.

[2]  s 49ZT.

[3]  Administrative Decisions Tribunal of New South Wales (the predecessor of NCAT).

[4]  Civil and Administrative Tribunal Act 2013(NSW).


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