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Parties cannot by agreement give jurisdiction to a tribunal it does not have

February 28th, 2011 · No Comments

Some things you learn the hard way.  One of my earliest appearances, as a young solicitor at a packed directions hearing before the notorious Master Patkin of the County Court, involved a discussion of the Court’s jurisdiction which I had not seen coming.  I suggested that the other side had consented to jurisdiction.  It earnt me a Socratic lecture, in public.  Here is what the law says, as recounted recently in Neill v Legal Profession Complaints Committee [2011] WASCA 48 at [7]:

‘In Pantorno v The Queen (1989) 166 CLR 466, the High Court made it clear that parties who agree a proposition of law cannot bind a court. Parties cannot by consent confer jurisdiction on a tribunal if none exists: see R v Moore (1976) 11 ALR 449 and Australian Education Union v Lawler (2008) 169 FCR 327 at [185].’

Of course it is not quite as simple as that.  Never is.  Creatures of statute may provide by the statute for the parties to agree on the creature having jurisdiction which it otherwise does not have.  The Magistrates’ Court Act, 1989, s. 100(1)(c), for example, provides for the parties to agree on the Court hearing a case where more than its jurisdictional limit of $100,000 is at stake.  Some imperfect knowledge of that proposition was what led me astray.

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Tags: Discipline · jurisdiction · procedure · VCAT