Crosby v Kelly

Case [2012] FCAFC 96

FEDERAL COURT OF AUSTRALIA

Crosby v Kelly [2012] FCAFC 96

Citation: Crosby v Kelly [2012] FCAFC 96
Parties: LYNTON CROSBY and MARK TEXTOR v MICHAEL KELLY
File number: ACD 70 of 2011
Judges: BENNETT, PERRAM AND ROBERTSON JJ
Date of judgment: 2 July 2012
Catchwords:

HIGH COURT AND FEDERAL COURT – jurisdiction of the Federal Court – proceedings brought in the Australian Capital Territory for defamation – whether Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) validly confers jurisdiction on the Federal Court

CONSTITUTIONAL LAW – courts – cross vesting of jurisdiction – conferring jurisdiction on the Federal Court with respect to laws made under s 122 of the Constitution – whether section both conferred jurisdiction and created rights – whether law defined jurisdiction of the Federal Court pursuant to s 77(i) of the Constitution – whether necessary to decide other constitutional questions

Legislation: Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 48A, 48AA
Civil Law (Wrongs) Act 2002 (ACT) Ch 9
Constitution ss 75, 76, 77, 122
Federal Court of Australia Act 1976 (Cth) ss 19, 25(6)
Federal Court Rules 2011 r 40.13
Judiciary Act 1903 (Cth) s 39(2)
Jurisdiction of Courts (Cross-vesting) Act1993 (ACT) s 4
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) preamble, ss 3(1), 4(2), 9(3)
Supreme Court Act 1933 (ACT) s 20
Cases cited: Hooper v Hooper (1955) 91 CLR 529 followed
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 applied
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to
Northern Territory v GPAO (1999) 196 CLR 553 followed
O'Neill v Mann (2000) 101 FCR 160 approved
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 followed
Re Wakim; Ex parte McNally (1999) 198 CLR 511 followed
Ruhani v Director of Police (2005) 222 CLR 489 followed
Spinks v Prentice (1999) 198 CLR 511 followed
Date of hearing: 2 July 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicants: Dr GC Dempsey
Solicitor for the Applicants: Colquhoun Murphy
Counsel for the Respondent: Mr CJ Dibb
Solicitor for the Respondent: Zone Legal
Counsel for the Commonwealth Attorney-General: Mr TM Howe QC with Mr G Aitken
Solicitor for the Commonwealth Attorney-General: Australian Government Solicitor
Counsel for the Northern Territory Attorney-General: Mr MP Grant QC Solicitor-General for the Northern Territory with Mr RH Bruxner
Solicitor for the Northern Territory Attorney-General: Solicitor for the Northern Territory
Counsel for the Australian Capital Territory Attorney-General: Mr PJF Garrisson Solicitor-General for the Australian Capital Territory with Ms KM Richardson
Solicitor for the Australian Capital Territory Attorney-General: ACT Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 70 of 2011
BETWEEN:

LYNTON CROSBY
First Applicant

MARK TEXTOR
Second Applicant
AND:

MICHAEL KELLY
Respondent

JUDGES:

BENNETT, PERRAM AND ROBERTSON JJ

DATE OF ORDER:

2 JULY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application dated 22 December 2011 be dismissed.

2.The respondent pay the applicants’ costs of…

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Crosby v Kelly [2012] FCAFC 96
Case
[2012] FCAFC 96
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CaseChat Overview and Summary

In Crosby v Kelly, the respondent brought proceedings in the Australian Capital Territory for defamation. The primary legal issue before the Court was whether the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) validly conferred jurisdiction on the Federal Court to hear and determine the matter. The Court was also required to consider whether the relevant provision of the Act both conferred jurisdiction and created rights, and whether the Act was a law defining the jurisdiction of the Federal Court under the Constitution.

The Court found that it was not necessary to decide the other constitutional questions involved in the case, in accordance with the principle set out in ICM Agriculture Pty Ltd v Commonwealth. The Court held that s 9(3) of the Act did not pick up the Supreme Court's jurisdiction as Commonwealth law, as it could not be read as both conferring jurisdiction and creating rights. The Court also held that the Act was not a law defining the jurisdiction of the Federal Court under the Constitution. The Court's reasoning was based on the distinction between laws that confer jurisdiction and those that create rights, as well as the requirement that a law defining the jurisdiction of the Federal Court must be found in s 75 or s 76 of the Constitution. The Court also noted that the Act did not include the Australian Capital Territory in its definition of "Territory."

Consistently with the approach of the High Court in Ruhani v Director of Police, the Court held that s 9(3) of the Act should not be read as both conferring jurisdiction and creating rights. The Court also held that the Act was not a law defining the jurisdiction of the Federal Court under the Constitution. The Court dismissed the respondent's interlocutory application, with costs, and ordered that the costs of the application be taxed immediately. The proceedings were to be listed before the docket judge on a date to be fixed.

Orders

Orders of the court

1. The respondent’s interlocutory application dated 22 December 2011 be dismissed.

2. The respondent pay the applicants’ costs of the interlocutory application, which may be taxed immediately.

3. The proceedings be listed before the docket judge on a date to be notified.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Because it is not necessary to decide other jurisdictional questions involving the Constitution the Court should not do so: see ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [141] and the authorities there cited. In particular, I do not consider whether disputes under Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) or the common law as it applies in the Australian Capital Territory otherwise arise under laws made by the Parliament within s 76(ii) of the Constitution: compare O’Neill v Mann (2000) 101 FCR 160.Conclusion and orders For these reasons I would dismiss the respondent’s interlocutory application dated 23 December 2011, with costs. The proceedings should be listed before the docket judge on a date to be fixed. An issue arose under r 40.13 of the Federal Court Rules 2011 as to whether the Court should order that the costs of this interlocutory application be taxed immediately. In my view, such an order should be made given the discrete nature of the jurisdictional question raised by the respondent’s interlocutory application.

Ratio Decidendi

Legal Principle Established

Consistently with the approach of the High Court in Ruhani v Director of Police (2005) 222 CLR 527 (Ruhani), it was submitted that s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) should be read as picking up, as Commonwealth law, the Supreme Court's jurisdiction to hear and determine the present dispute. No second law under s 122 was necessary, she submitted, as the same provision could, and here did, both confer jurisdiction and create rights, those rights having the force of laws of the Commonwealth in respect of which a matter may arise within s 76 (ii) of the Constitution: reference was made to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 (Barrett); Hooper v Hooper (1955) 91 CLR 529 and Ruhani (above).Consideration At first glance, s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) appears to supply the gateway to the present issue. It provides that where the Supreme Court of a Territory has jurisdiction with respect to a civil matter then jurisdiction is conferred on the Federal Court, if it would not apart from the section have jurisdiction with respect to that matter. But s 3(1) of that Act provides that “Territory” does not include the Australian Capital Territory and “State” does include the Australian Capital Territory. It is therefore necessary to go to s 9(3) of that Act which I have set out above. It will be recalled that in Re Wakim (above), s 9(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) was held invalid as an attempt to confer jurisdiction on the Federal Court that was not found in s 75 or s 76 of the Constitution. Earlier, in GPAO (above) a majority of the High Court had held that s 76(ii) of the Constitution, in conjunction with s 77(i) of the Constitution, permitted the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution: see GPAO (above) at [91], [132] and [254]. The federal court in that case was the Family Court of Australia and the law made under s 122 of the Constitution was s 69ZG of the Family Law Act 1975 (Cth), providing that Pt VII of that Act applied in and in relation to the Northern Territory so that a parenting order could be made by the Family Court in respect of a child that was not the child of a marriage. Section 122 provides:122 The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. In Spinks v Prentice (above), decided at the same time as Re Wakim (above), orders for examination were made by the Federal Court under the Corporations Law (ACT). The High Court held that s 51(1) of the Corporations Act1989 (Cth) validly conferred jurisdiction on the Federal Court under the Corporations Law (ACT). By s 51(1), jurisdiction was conferred on the Federal Court “with respect to civil matters arising under the Corporations Law of the Capital Territory”. The High Court gave the answers “yes” to the questions whether s 51(1) was a law defining the jurisdiction of a federal court other than the High Court within s 77(i) and with respect to a matter arising under a law made by the Parliament within s 76(ii): see especially (1999) 198 CLR 511 at [172] and [175] and also at [25] per Gleeson CJ, [27] and [30] per Gaudron J and [82] per McHugh J. The High Court followed the then recent decision in GPAO (above), on the assumption that s 122 of the Constitution was the sole source of power to make the Corporations Law (ACT).