Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd

[2000] NTSC 34

Bateman Project Engineering Pty Ltd & Ors v Pegasus Gold Australia

Pty Ltd [2000] NTSC 34

PARTIES:	BATEMAN PROJECT ENGINEERING PTY LTD & ORS
v
PEGASUS GOLD AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED)
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY AS INTERVENER
TITLE OF COURT:	FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	FULL COURT
FILE NOS:	306 of 1997 (9728220), 21 of 1998 (9801771), 81 of 1998 (9809080)
DELIVERED:	6 June 2000
HEARING DATES:	19 April 2000
JUDGMENT OF:	MARTIN CJ, ANGEL & THOMAS JJ
CATCHWORDS:

CONSTITUTIONAL LAW

Legislative powers of Commonwealth parliament in relation to Territories –

whether proceedings in a Territory court be validly transferred to the Federal
Court of Australia and can that court hear and determine the proceedings
under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987

(Cth).

Held:

Full Court concluded in the affirmative

Commonwealth of Australia Constitution Act 1900, s 122

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5 and s 9

Northern Territory of Australia v GPAO & Ors (1999) 196 CLR 553,
applied.

Spinks v Prentice (1999) 163 ALR 270, considered.

REPRESENTATION:

Counsel:

Plaintiffs:	D Alderman
Defendant:	D Grieves
Intervener	T Pauling QC

Solicitors:

Plaintiffs:	Hunt and Hunt
Defendant:	Ward Keller
Intervener:	Solicitor General for the NT on behalf of the Attorney-General
Judgment category classification:	A
Judgment ID Number:	mar20009
Number of pages:	5
Mar20009
IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Bateman Project Engineering Pty Ltd & Ors v Pegasus Gold Australia Pty

Ltd [2000] NTSC 34

Nos. 306/97 (9728220), 21/98 (9801771), 81/98 (9809080)

BETWEEN:

BATEMAN PROJECT ENGINEERING

PTY LTD

First Plaintiff

AND:

KINHILL PACIFIC PTY LIMITED

Second Plaintiff

AND:

KILBORN ENGINEERING PACIFIC

PTY LIMITED

Third Plaintiff

AND

PEGASUS GOLD AUSTRALIA PTY
LTD (ADMINISTRATORS

APPOINTED)

Defendant

AND

ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY

Intervener

CORAM:  MARTIN CJ, ANGEL & THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 6 June 2000)

1. The Jurisdiction of Courts (Cross-vesting) Act of the Commonwealth 1987

   provides in s 5 that in the circumstances prescribed this Court shall transfer

   proceedings pending in the court to the Federal Court of Australia or the

   Family Court of Australia as the case may require. The Act further provides

   in s 9 that each of those courts have jurisdiction to hear and determine a

   proceeding so transferred.

2. Pursuant to s 21 of the Supreme Court Act 1979 (NT) a Judge of the court,

   Justice Mildren, hearing proceedings between these parties, referred part of

   them to this Court. The reference accepted by this Court is:

   “Can these proceedings be validly transferred by this Court to the

   Federal Court of Australia and can that court validly hear and determine the proceedings under the provisions of the Jurisdiction of

   Courts (Cross-vesting) Act 1987 of the Commonwealth.”

3. In summary, the proceedings involved claims by the plaintiffs for work

   carried out at the request of the defendant and for orders for enforcement of

   statutory liens under the Workmens Liens Act 1893 (NT). There are a

   number of defences pleaded, including breach of contract, negligence and

   breaches of the Trade Practices Act.

4. The reference arises in the context of the decisions by the High Court in re

   Wakim ex parte McNally & Anor (1999) 163 ALR 270 and other cases

   decided at the same time. It was there held that the purported conferral of jurisdiction on the Federal Court by the Corporations Laws of the States to

   hear and determine proceedings are invalid. That is so notwithstanding that

   the Corporations Laws of the Parliament of the Commonwealth provide that

   the Federal Court can exercise the jurisdiction conferred on it by the law of

   a State. Such a scheme foundered on Ch III of the Constitution.

5. Amongst that group of decisions, however, was Spinks v Prentice arising

   from proceedings in the Federal Court under the Corporations Law of the

   Australian Capital Territory. It was unanimously held that the appeal

   challenging the Corporations Law cross-vesting scheme by the conferral of

   jurisdiction on the Federal Court under Territory law and the power to

   exercise that jurisdiction under Commonwealth law is valid.

6. Their Honours Gummow and Hayne JJ at pp 318 – 321 survey the

   authorities and relied in particular on the Northern Territory of Australia v

   GPAO and Others (1999) 196 CLR 553, Gleeson CJ and Gaudron J

   separately agreed with those reasons at p 281, McHugh J said that since the

   decision in GPAO the jurisdiction of the Federal Court to make the order in

   question cannot be challenged, Kirby J agreed with the decision of the Full

   Court of the Federal Court from which the application for special leave to

   appeal was brought, p 339, and Callinan J at p 353 applied GPAO in coming

   to his decision that the Federal Court had jurisdiction to make the orders in

   question.

7. The result in GPAO did not flow from a unanimous decision. However, the

   majority, comprising Gleeson CJ and Gummow J. at p 591, Hayne J

   concurring at p 650 and Gaudron J at p 605 held it was within constitutional

   power for a law of the Parliament of the Commonwealth to confer

   jurisdiction on a Federal Court in matters arising under laws made for

   Territories under s 122 of the Constitution.

8. The decisions of the High Court in Wakim and the related cases demonstrate

   that the provisions of the cross-vesting scheme there under consideration are

   severable so as to render conferral of jurisdiction by State Parliaments on

   the Federal Court invalid, but conferral by a Territory Parliament on a

   Federal Court valid. There is no reason why the provisions of the

   Commonwealth law here being considered should not be dealt with in the

   same manner. In so far as they deal with the general power to transfer

   proceedings from this Court to the Federal Court and the power of that court

   to hear and determine them, it is a law enacted under s 122 of the

   Constitution. It stands aside from the provisions held to be invalid and can

   thus be regarded quite separately.

9. The plaintiffs did not seek to be heard upon the reference, but counsel for

   the defendant, and the Solicitor General for the Northern Terr itory

   intervening, submitted that upon those authorities the answer to the question

   was yes.

10. At the conclusion of the hearing we answered the reference in the

    affirmative and these are the reasons for that order.

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