D & H Investments Pty Ltd v Wagner (T/As WAGNER'S BOATWORKS)

[2005] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

Question of Law Reserved FOR THE DETERMINATION OF THE FULL COURT OF THE SUPREME COURT

D & H INVESTMENTS PTY LTD & ANOR v WAGNER (T/AS WAGNER'S BOATWORKS) & ANOR

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice White)

17 February 2005

SHIPPING AND NAVIGATION - ADMIRALTY JURISDICTION, LAW AND PRACTICE - JURISDICTION IN GENERAL

ADMIRALTY JURISDICTION OF DISTRICT COURT

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT

JURISDICTION

HIGH COURT AND FEDERAL COURT - ORIGINAL JURISDICTION OF THE HIGH COURT - EXTENT OF JURISDICTION AND POWER OF COMMONWEALTH PARLIAMENT - ADDITIONAL JURISDICTION WHICH MAY BE CONFERRED UNDER THE CONSTITUTION - OTHER CASES

MATTERS OF ADMIRALTY AND MARITIME JURISDICTION

HIGH COURT AND FEDERAL COURT - OTHER MATTERS RELATING TO FEDERAL COURTS - FEDERAL JURISDICTION OF STATE COURTS - FEDERAL JURISDICTION CONFERRED ON STATE COURTS

GENERALLY

Question of Law reserved for determination of Full Court whether District Court had jurisdiction to hear and determine the plaintiffs’ claim – Plaintiffs instituted proceedings in tort and contract in District Court – Second defendant sought an order that proceedings be stayed or dismissed for want of jurisdiction – Proceedings involved “a claim in respect of the construction of a ship” and this was a “general maritime claim” in Admiralty jurisdiction – Construction of s 8 of the District Court Act – Section 8(1) generally confers upon the District Court the same jurisdiction as the Supreme Court – Section 8(1)(a) qualifies the grant of jurisdiction in s 8 itself by withholding from the District Court the Supreme Court’s jurisdiction in Admiralty, but does not prohibit the District Court from exercising Admiralty jurisdiction derived from another source – Lack of conferral of Admiralty jurisdiction upon the District Court by s 8 of the District Court Act itself does not constitute a “limitation as to jurisdiction” to which the vesting of federal Admiralty jurisdiction is subjected by s 39(2) of the Admiralty Act – A provision purporting to prohibit the exercise of federal jurisdiction invested in a State Court is not a “jurisdictional limit” within the meaning of s 39(2) of the Admiralty Act – Either it is beyond the legislative competence of South Australian Parliament to preclude the District Court from being vested with federal jurisdiction in Admiralty, or a law purporting to do so would be inconsistent with s 9 of the Admiralty Act – Question of law reserved answered “yes”.

District Court Act 1991 (SA) ss 4, 5, 8, 9, 44; Companies Act 1962 (SA); Judiciary Act 1903 (Cth) ss 39, 39A, 78A, 78B, 79; Admiralty Act 1988 (Cth) ss 4, 5, 9, 10, 11, 12, 13, 14, 39, 44; Colonial Courts of Admiralty Act 1890 (UK) (53 & 54 Vict, c 27) s 2; Local and District Criminal Courts Act 1926-1975 31, 32; Acts Interpretation Act 1901 (Cth) ss 13, 22A; Constitution 1901 (Cth) ss 75, 76, 77, 79, 109; Magistrates Court Act 1991 (SA) s 8; Crown Proceedings Act 1972 (SA); Sales Tax Assessment Act (No 1) 1930-1935 (Cth); Fair Trading Act 1987 (SA); Justices Act 1928 (Vic); Environment, Resources and Development Court Act 1993 (SA) s 4; Liquor Licensing Act 1997 (SA) s 12; Industrial and Employee Relations Act 1994 (SA) s 8; Supreme Court Rules 1987 r 33; Cowen and Zines' Federal Jurisdiction in Australia L Zines, 3rd Edition (2002, Federation Press); Admiralty Law and Practice in Australia and New Zealand D J Cremean, 2nd Edition (2003, Federation Press), referred to.
Federated Sawmill Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308; R v Bull (1974) 131 CLR 203, discussed.
Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; Owners of the Motor Vessel "Iran Amanat" v KMP Coastal Oil Pty Ltd (1999) 196 CLR 130; Union Steamship Co of New Zealand Ltd v The Ship Caradale, Her Cargo and Freight (1937) 56 CLR 277; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13; Kirmani v Captain Cook Cruises Pty Ltd (1985) 159 CLR 351; Amarantos Shipping v South Australia (2004) 89 SASR 438; Stingray Boats v Denmeade [2002] FCA 1446; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Le Mesurier v Connor (1929) 42 CLR 481; Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545; Peacock v Newtown Marrickville and General Co-operative Building Society (No 4) Ltd (1943) 67 CLR 25; Bond v George A Bond and Co Ltd and Bond Industries Ltd (1930) 44 CLR 11; Ly v Jenkins (2001) 114 FCR 237; Kali Boat Building and Repair Pty Ltd v The Motor Fishing Vessel "Bosna" and Ors (1977) 19 SASR 112; Blunden v Commonwealth [2003] HCA 73; (2003) 203 ALR 189; 78 ALJR 236; Kotsis v Kotsis (1970) 122 CLR 69; Russell v Russell (1976) 134 CLR 495; Brown v The Queen (1986) 160 CLR 171; Fardon v Attorney-General (Q) [2004] HCA 46; (2004) 210 ALR 50; 78 ALJR 1519; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Admiralty and maritime jurisdiction", "take State courts as it finds them", "limitations as to jurisdiction"

Question of Law Reserved FOR THE DETERMINATION OF THE FULL COURT OF THE SUPREME COURT
D & H INVESTMENTS PTY LTD & ANOR v WAGNER (T/AS WAGNER'S BOATWORKS) & ANOR
[2005] SASC 51

Full Court:  Duggan, Besanko and White JJ

1. DUGGAN J.         In my view the question of law reserved for determination by this court should be answered “yes”.  I agree with the reasons prepared by Besanko J.

2. BESANKO J: A Judge of the District Court of South Australia has reserved a question of law arising in an action in that Court for determination by this Court. The power to reserve a question of law for determination by this Court is contained in s 44(2) of the District Court Act1991 (“DCA”).

3. The question of law is as follows:

   Does the District Court have jurisdiction to hear and determine the plaintiffs’ claim?

   The plaintiffs’ claim

4. The plaintiffs’ claim is set out in a Second Further Amended Statement of Claim which was filed and served by the plaintiffs in the action on or about 5^th March 2003.  In addition, there is a summary of the plaintiffs’ claim in the document which was signed by the Judge and which reserves the question of law for determination by this Court.

5. It is unnecessary to do more than briefly summarise the nature of the plaintiffs’ claim. 

6. The first plaintiff is a company duly incorporated under the Companies Act 1962 (SA).  The second plaintiff, Mr Brian Morgan, and his wife were and are directors and shareholders of the first plaintiff.  It is alleged that at all material times the second plaintiff was acting on behalf of the first plaintiff or on his own behalf.  For convenience I will use the term “the plaintiffs” although as I understand the plaintiffs’ claim, it is said only one of them was a party to the contracts I am about to mention.

7. In 1995 the plaintiffs wished to construct a motor boat to be used for commercial purposes and to be called “Moonshadow”.  The motor boat was to be a twin-hulled motor boat of approximately 18 metres in length.

8. The second defendant, Crowther Multihulls Pty Ltd (“Crowther Multihulls”) designed boats of the type the plaintiffs sought to have constructed, and the first defendant, Thomas Paul Wagner trading as Wagner’s Boat Works (“Wagner”), constructed such boats.

9. In mid to late 1995, the plaintiffs engaged Crowther Multihulls to design the boat they wanted, and Crowther Multihulls prepared plans for a twin-hulled motor boat approximately 18 metres in length.

10. In approximately December 1995, the plaintiffs provided preliminary design plans for Moonshadow to Wagner with a view to him providing a quotation as to the cost of construction and estimates as to the time for completion.

11. The plaintiffs informed Wagner that Moonshadow was to be used for commercial purposes, including day and night sightseeing, diving trips, day gulf fishing trips, day gulf lunch cruises, deep sea fishing and deep sea sightseeing, and that accurate estimates of the costs and the time for completion were necessary.

12. In approximately June 1996, the plaintiffs entered into an agreement with Wagner for the construction of Moonshadow in accordance with the final plans and schedules prepared by Crowther Multihulls.  It was anticipated that construction would be completed by the end of June 1997.  However, there were significant delays and a number of defects in the design and construction of Moonshadow.  In December 1998, construction had not been completed and the plaintiffs removed Moonshadow from Wagner’s workshop.  On 15^th December 1998, the plaintiffs gave Wagner notice in writing of the termination of the construction agreement.  The construction of Moonshadow was subsequently completed by Port River Marine Services.  It was launched on 28^th February 2000 and thereafter seaworthiness trials were undertaken.  Moonshadow was sold by the plaintiffs on or about 18^th May 2001.

13. In the document reserving the question of law, the plaintiffs’ claim is summarised in the following way:

    “The plaintiffs claim damages sustained as a result of misrepresentations made by the first defendant, and breach of contract and/or breach of duty of care and/or negligence in the failure on the part of each of the defendants respectively to exercise reasonable diligence, care and skill in the execution of the construction and design of the boat ‘Moonshadow’.”

14. To understand how the question of law arises it is necessary to examine the relevant provisions of the Admiralty Act1988 (Cth) and the DCA.

    The Admiralty Act1988 (Cth) (“Admiralty Act”)

15. In 1988 the Federal Parliament enacted the Admiralty Act which came into operation on 1^st January 1989.  In doing so the federal Parliament exercised its power to make laws under ss 76 and 77 of the Commonwealth of Australia Constitution Act (“the Constitution”). Under s 76 the federal Parliament is given power to make laws conferring original jurisdiction on the High Court in relation to four matters one of which is identified as “of Admiralty and Maritime jurisdiction”. Section 77 provides that with respect to the nine matters of jurisdiction identified in ss 75 and 76 of the Constitution, the federal Parliament may make laws:

    “(i)defining the jurisdiction of any federal court other than the High Court;

    (ii)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;

    (iii)investing any court of a State with federal jurisdiction.”

16. The High Court has said that the phrase “of Admiralty and Maritime jurisdiction” should be interpreted broadly.  In The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404 the Court said (at 424):

    “Ordinary principles of constitutional construction, which require constitutional provisions to be interpreted liberally according to their terms without imposing limitations that are not found in the express words compel the conclusion that ‘maritime’ in s 76(iii) serves to extend jurisdiction beyond Admiralty jurisdiction as it existed in 1901. And quite apart from the course of constitutional interpretation of Art III, s 2(1) of the United States Constitution, and notwithstanding what was said by Isaacs J in John Sharp & Sons Ltd v The Katherine Mackall to the effect that s 76(iii) was predicated on ‘established English precedent’, those same ordinary principles direct an approach which allows that s 76(iii) extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation.”

17. Before the enactment of the Admiralty Act, admiralty jurisdiction was conferred on courts of original unlimited civil jurisdiction in a British possession by reason of the Colonial Courts of Admiralty Act 1890 (UK) (s 2(1)) (“Colonial Courts of Admiralty Act”).  Clearly, this included the Supreme Courts of each State, including the Supreme Court of this State.  It did not include intermediate trial courts such as the local courts established under the Local and District Criminal Courts Act 1926-1975 (“Local and District Criminal Courts Act”) because those courts were not courts of original unlimited civil jurisdiction.  I note that for a time it may be that by reason of a provision of the Judiciary Act 1903 (Cth) (“Judiciary Act”) since repealed, only the High Court had jurisdiction under the Colonial Courts of Admiralty Act (Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 per Dixon J (as he then was) at 279 – 280).

18. Section 44 of the Admiralty Act provides that the Colonial Courts of Admiralty Act is repealed so far as it is part of the law of the Commonwealth.  The effect of this section so far as the jurisdiction invested by the Imperial Act in State courts of original unlimited civil jurisdiction is concerned is not entirely clear, but for reasons I will give, it is not necessary for me to resolve that question in this case (Cowen and Zines’ Federal Jurisdiction in Australia 3^rd ed L Zines at 240 – 242; Admiralty Jurisdiction Law and Practice in Australia and New Zealand 2^nd ed D J Cremean at 12).

19. The Admiralty Act refers to maritime claims and they are defined to mean “a proprietary maritime claim” and “a general maritime claim”, each of which is in turn defined. One type of general maritime claim is “a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched)” (s 4(3)(n)). As I understand it, it is common ground between the parties that the plaintiffs’ claim in this case is a general maritime claim within s 4(3), and that it is not excluded from the application of the Admiralty Act by reason of any of the exclusionary provisions in s 5.  It is also common ground that the plaintiffs’ claim is a proceeding commenced as an action in personam on a maritime claim.

20. Part II of the Admiralty Act deals with the investing or conferring of jurisdiction in relation to maritime claims on courts in Australia, including the courts of the States.  The Act draws a distinction between proceedings commenced as actions in rem and proceedings commenced as actions in personam.  Actions in rem are, generally speaking, based on proprietary maritime claims, and may only be commenced against a ship or other property as provided by the Act (s 14).  As far as the courts of this State are concerned, only the Supreme Court has jurisdiction over an action in rem (s 10).  The Governor-General may, by Proclamation, invest a court of the State other than the Supreme Court with federal jurisdiction over actions in rem (s 11), but no Proclamation relevant to a court in this State has been made.

21. The courts of this State are invested with federal jurisdiction in relation to actions in personam on a maritime claim (s 9). On the face of it the District Court has been invested with federal jurisdiction in relation to actions in personam on a maritime claim. In relation to actions in personam, there is no equivalent to s 14 of the Admiralty Act.  In other words, there is no statement in the Act to the effect that an action in personam on a maritime claim may only be commenced as provided by the Admiralty Act.

22. Section 12 confers jurisdiction on a court in respect of a matter of admiralty and maritime jurisdiction over which it does not otherwise have jurisdiction but which is associated with a matter in respect of which it has jurisdiction, and s 13 provides that the Act does not confer jurisdiction on a court, or invest a court with jurisdiction, in a matter that is not of a kind mentioned in paragraph 76(ii) or (iii) of the Constitution.

23. Finally, it is important to note s 39(2) of the Act which provides as follows:

    “(2)Where a court of a State is invested with jurisdiction in relation to a proceeding commenced under section 9 or such jurisdiction is conferred on a court of a Territory, the jurisdiction is invested or conferred within the limits of the jurisdiction of the court concerned and, in the case of a court of a Territory, only so far as the Constitution permits.”

    The District Court Act 1991

24. The DCA establishes the District Court of South Australia (s 4) and provides that the Court is a Court of record (s 5).  The Court is divided into four Divisions, namely, the Civil Division, the Criminal Division, the Criminal Injuries Division and the Administrative and Disciplinary Division.  The Court is given a broad and extensive jurisdiction in relation to criminal and civil matters.  In relation to criminal matters, the Court has jurisdiction to try a charge of any offence except treason or murder, or a conspiracy or attempt to commit, or assault with intent to commit, either of those offences and jurisdiction to convict and sentence, or to sentence, a person found guilty on trial, or on his or her own admission, of such an offence (s 9(1) and (2)).  The Court also has any other criminal jurisdiction conferred by statute (s 9(4)).

25. In relation to civil matters, s 8 of the DCA relevantly provides:

    “(1)The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications:

    (a)the Court has no jurisdiction in probate or admiralty;

    (b)     the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ;

    …

    (4)     The Court has any other civil jurisdiction conferred by statute.

    (5)All proceedings before the court, other than in its Criminal Division, are to be regarded as civil proceedings for the purposes of this Act or any other Act or law.”

26. In terms of civil jurisdiction at first instance, the District Court is the intermediate civil court in this State.  Before the enactment of the DCA and the Magistrates Court Act1991, civil jurisdiction in this State below the Supreme Court was exercised by local courts of full jurisdiction and local courts of limited jurisdiction established by the Local and District Criminal Courts Act.  The type of claims those courts were given the power to hear and determine were specifically identified (eg., personal actions) and there were monetary limits on the jurisdiction of the respective courts which were from time to time increased (ss 31 and 32 of the Local and District Criminal Courts Act).

    The Second Defendant’s Application

27. The second defendant brought an application dated 23^rd April 2003 seeking the following orders:

    “1.That there be a stay of the within proceedings on the ground that the District Court has no jurisdiction to entertain or to hear and determine the claim of the plaintiffs.

    2.In the alternative, that the action and proceedings against the second defendant be dismissed.”

28. The second defendant submitted that the plaintiffs’ action was an action or claim in admiralty, and that by reason of s 8(1) of the DCA the District Court had no jurisdiction to hear and determine the claim.

29. The application was heard by a Master of the District Court on 29^th October 2003. The Master refused to make the orders sought and he found that the District Court had jurisdiction to hear and determine the plaintiffs’ claim pursuant to s 9 of the Admiralty Act.  On 23^rd December 2003, the Master gave detailed reasons for his decision.  By Supplementary Notice of Appeal dated 5^th February 2004 the second defendant appealed against the Master’s orders to a Judge of the District Court.

1. Both the plaintiffs and the second defendant joined in a request to the Judge of the District Court to reserve a question of law for determination by this Court, and the Judge acceded to that request. The first defendant, Wagner, has not participated in the argument on the application at any stage, but has notified the court that he supports the second defendant’s application for a stay of proceedings pending the determination of the appeal from the decision of the Master. He took no part in the hearing before this Court. Notices within the terms of s 78B of the Judiciary Act were given to the Attorneys-General for the Commonwealth and States respectively on the basis that the question of law reserved involved or may involve a matter arising under the Constitution or involving its interpretation. Only the Attorney-General for the State of South Australia (“the Attorney-General”) sought to intervene under s 78A. There were other grounds upon which the Attorney-General might have intervened (Crown Proceedings Act 1972; r 33 Supreme Court Rules 1987), but in the result there was no dispute about the Attorney-General’s right of intervention and we heard fully from his counsel.

   Issues arising on the question of law

2. The second defendant submits that the word “admiralty” in s 8(1)(a) of the DCA means the jurisdiction defined as a maritime claim under the Admiralty Act. In other words, it is submitted that in enacting s 8(1)(a) in 1991 the South Australian Parliament had in mind the jurisdiction identified in the Admiralty Act. As I have said, it is common ground that the plaintiffs’ claim is a general maritime claim within s 4 of the Admiralty Act 1988 (Cth).

3. It is submitted by the second defendant that the South Australian Parliament decided that the District Court should not have jurisdiction in maritime claims and that that is clear from the terms of s 8(1)(a) of the DCA. Section 8(4) does not acknowledge the jurisdiction invested in the District Court as a court of this State by the Admiralty Act because it refers to “any other civil jurisdiction conferred by statute”.  The second defendant submits that the use of the word “other” in s 8(4) is significant because it makes it clear that the jurisdiction referred to in s 8(4) is jurisdiction other than the jurisdiction identified, even in an exclusionary way, in s 8(1).  The second defendant submits that no constitutional principle is infringed by this interpretation of s 8(1) because s 39(2) of the Admiralty Act makes it clear that federal jurisdiction is only invested in a State court within the limits of the jurisdiction of that State court and s 8(1)(a) prescribes a jurisdictional limit for the District Court.

4. The plaintiffs accept that their claim is a general maritime claim under the Admiralty Act. They submit that the reference in s 8(1)(a) of the DCA to no jurisdiction in admiralty is not a prohibition, but rather is no more than a qualification on the general jurisdiction otherwise conferred by s 8(1). The plaintiffs submit that such an approach to the construction of s 8(1) is consistent with constitutional principle, whereas the construction advanced by the second defendant is not consistent with constitutional principle because the State Parliament has no power to in effect repel federal jurisdiction invested in the District Court by the Admiralty Act. Section 22A of the Acts Interpretation Act 1915 (SA) provides that every provision of an Act is to be construed so as not to exceed the legislative power of the State. The plaintiffs submit that s 8(4) of the DCA acknowledges the jurisdiction invested in the District Court as a court of this State by s 9 of the Admiralty Act. The plaintiffs refer to ss 39 and 39A of the Judiciary Act and submit that the laws of the State, apart from the subject matter of the conferred jurisdiction, continue to apply. The plaintiffs also refer to s 79 of the Judiciary Act. The plaintiffs submit that the South Australian Parliament does not have the power to reject or deny a vesting of federal jurisdiction under the power given to the federal Parliament by s 77(iii) of the Constitution. The plaintiffs submit that it would be contrary to the Constitution for the South Australian Parliament to pass a law which had the effect of negating or denying the power given to the federal Parliament by s 77 of the Constitution. Furthermore there would be an inconsistency between s 9 of the Admiralty Act and s 8(1) of the DCA and in those circumstances the provisions of the Admiralty Act would prevail (s 109 of the Constitution).  The plaintiffs put another argument which I understand is an alternative argument.  They submit that their claim is a claim in the ordinary civil jurisdiction of the District Court and that there is nothing in the Admiralty Act which provides that their claim may only be brought as a claim in admiralty.

5. The Attorney-General submits that prior to the enactment of the Admiralty Act local courts established under the Local and District Criminal Courts Act did not have jurisdiction in admiralty.  Only the Supreme Court of this State had such jurisdiction by reason of the Colonial Courts of Admiralty Act because it was the only court of original unlimited civil jurisdiction in this State.  After the enactment of the Admiralty Act, local courts did possess jurisdiction over actions in personam on a maritime claim within the Admiralty Act and the Magistrates Court established under the Magistrates Court Act had and continues to have such jurisdiction to the present day. The Attorney-General submits that as a matter of construction, s 8(1)(a) of the DCA should be read as a control on the jurisdiction that is to be vested in the District Court by reference to the Supreme Court’s jurisdiction rather than a prohibition on the vesting of jurisdiction from some other source.  He submits that s 8(1)(a) is designed to make it clear that there is no attempt by the South Australian Parliament to vest in the District Court the Supreme Court’s jurisdiction over actions in rem based on a maritime claim.  The Attorney-General also submits that the plaintiffs’ claim is a claim in the ordinary civil jurisdiction of the District Court.

6. In my opinion, there are two possible constructions of s 8(1) of the DCA and, by and large, they correspond with the construction advanced by the plaintiffs and the Attorney-General on the one hand and the construction advanced by the second defendant on the other. 

7. The first construction is that s 8(1) provides for a general conferral on the District Court of the civil jurisdiction of this Court at first instance, subject to certain matters which qualify the general conferral of jurisdiction.  In other words, the general conferral of jurisdiction does not include, among other things, jurisdiction in admiralty.   In particular, it does not include the Supreme Court’s jurisdiction in admiralty as at the date of the enactment of the DCA. This does not mean that the District Court does not have jurisdiction in admiralty if it is otherwise conferred by an Act of the federal Parliament, or indeed by a State Act (see s 8(4) of the DCA); it simply means that it does not have jurisdiction in admiralty by reason of the general conferral of jurisdiction in s 8(1).

8. The second construction is that 8(1)(a) is an express statement by the South Australian Parliament that the District Court does not have jurisdiction in admiralty.  In determining what is meant by the word “admiralty” the obvious reference point is the Admiralty Act dealing with admiralty and maritime jurisdiction and passed only a few years before the enactment of the DCA. In other words, the matters identified as maritime claims in s 4 of the Admiralty Act, including the plaintiffs’ claim, are the matters falling within the term “admiralty” in s 8(1)(a) of the DCA.

9. I have concluded that the proper construction of s 8(1) is the first construction, namely, the construction advanced by the plaintiffs and the Attorney-General.  It must be said that the wording in the section is awkward, and neither construction sits easily with the words of s 8(1).

10. I have reached my conclusion as to the proper construction of s 8(1) of the DCA by reference to a number of matters. 

11. I start with some general matters.  The DCA came into operation on 6^th July 1992.  Plainly, the general effect of the DCA in terms of civil and criminal jurisdiction was to significantly increase the jurisdiction of the District Court.  The District Court replaced local courts established under the Local and District Criminal Courts Act.  From the enactment of the Admiralty Act on 1^st January 1989 those courts had, within the monetary limits of their jurisdiction, federal jurisdiction invested in them under the Admiralty Act in relation to actions in personam on a maritime claim including the type of claim brought by plaintiffs in this action.  In view of the general effect of the DCA in terms of the conferral of an extensive jurisdiction on the District Court, it would be surprising if the DCA excluded a jurisdiction previously vested in the local courts which the District Court replaced.  The Magistrates Court established under the Magistrates Court Act1991 has federal jurisdiction over actions in personam on a maritime claim including a claim of the nature brought by the plaintiffs in this action within the monetary limits of the jurisdiction of the court (s 8 Magistrates Court Act1991).  Again, I think that it would be surprising if the South Australian Parliament considered it appropriate for the Supreme Court and the Magistrates Court to have federal jurisdiction invested in courts of a State by the provisions of the Admiralty Act but for the District Court not to have such jurisdiction.

12. It is appropriate that I have regard to these general matters.  In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 the High Court considered the well-established rules in relation to the proper construction of a statutory provision. Mason and Wilson JJ said (at 321):

    “If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

13. Nevertheless, the general matters which I have identified cannot prevail if the words of the section clearly point to a contrary construction.

14. I think that the approach adopted by the South Australian Parliament in s 8(1) of the DCA in defining the civil jurisdiction of the District Court is to give that Court the same jurisdiction as this Court subject to certain qualifications.  In other words, the jurisdiction of this Court other than (relevantly for present purposes) this Court’s jurisdiction in admiralty is given to the District Court.  At the time the DCA was enacted, the Supreme Court had the following jurisdiction in relation to admiralty and maritime claims:

    1.Federal jurisdiction over actions in rem based on a maritime claim invested in the Court by s 10 of the Admiralty Act;

    2.Federal jurisdiction over actions in personam based on a maritime claim invested in the Court by s 9 of the Admiralty Act;

    3.If s 44 of the Admiralty Act was not effective to repeal the Colonial Courts of Admiralty Act insofar as it otherwise applied to Supreme Courts of the various States, the admiralty jurisdiction given by that Act.

15. It was submitted by the plaintiffs and the Attorney-General that in referring to admiralty in s 8(1)(a) of the DCA, the South Australian Parliament had in mind the federal jurisdiction over actions in rem based on a maritime claim invested in the Supreme Court by s 10 of the Admiralty Act.  I think that that submission is probably correct.  It is true that any attempt by the South Australian Parliament to invest such jurisdiction in the District Court would be legally ineffective because it would be contrary to the scheme in the Admiralty Act whereby the court of a State (other than the Supreme Court) is to have such jurisdiction only if the Governor-General by Proclamation declares the court to be a court to which s 11 of the Admiralty Act applies.  Nevertheless, the State Parliament may have considered it appropriate to make it clear that it was not attempting to invest such jurisdiction in the DCA in order to avoid any argument that the section as a whole was invalid.

16. It was also submitted that in addition, or in the alternative to the above, in referring to admiralty in s 8(1)(a) the South Australian Parliament had in mind the possibility of this Court having admiralty jurisdiction by reason of the Colonial Courts of Admiralty Act.  I think that this is an unlikely possibility.  The prospect of this Court in 1991 having admiralty jurisdiction by reason of the Colonial Courts of Admiralty Act is fairly remote, and in any event, I cannot see good reason why, in light of the extensive jurisdiction conferred on the District Court by the DCA, jurisdiction under the Colonial Courts of Admiralty Act would be excluded.

17. I think that on the proper construction of s 8(1)(a) the jurisdiction in admiralty referred to therein is the Supreme Court’s jurisdiction in admiralty. That jurisdiction is not given to the District Court by reason of the provisions of s 8(1). Jurisdiction over actions in personam on a maritime claim is given to the District Court by s 9 of the Admiralty Act. This construction of s 8(1) of the DCA is also supported by the consideration that it is not apparent why the South Australian Parliament would deny to the District Court the Federal jurisdiction invested in it by s 9 of the Admiralty Act. 

18. The plaintiffs go further and submit that there is a further reason not to adopt the second possible construction of s 8(1) of the DCA and that is that it would involve an attempt by the South Australian Parliament to repel federal jurisdiction and that that would be unconstitutional. They refer to s 22A of the Acts Interpretation Act1915 (SA), which provides that the provision of every Act will be construed so as not to exceed the legislative power of the State. They submit that the construction advanced by the second defendant would mean the State was repelling federal jurisdiction invested in one of its courts by the federal Parliament and that that is beyond the legislative power of the South Australian Parliament. I turn now to examine that argument.

19. I should record at this stage that, as I understand it, it was not argued in this case that jurisdiction over admiralty and maritime claims was invested in the courts of this State by reason of s 39(2) of the Judiciary Act, although it was said that authorities dealing with the scope and operation of that section are relevant.  It was said that federal jurisdiction over admiralty and maritime claims was invested in the courts of this State including the District Court by the provisions of the Admiralty Act.

20. In Federated Sawmill Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, Griffith CJ said (at 313):

    “I think that when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared.”

21. The reasons for judgment of Barton J are to similar effect.

22. Absent an express declaration by the federal Parliament, the jurisdictional limits of the courts of a State are respected and it is the jurisdictional limits as they are from time to time.  In Commonwealth of Australia v District Courtof the Metropolitan District Holden at Sydney & Anor (1954) 90 CLR 13 the High Court held that s 39(2) of the Judiciary Act was an ambulatory provision in the sense that it recognised the jurisdictional limits of the courts of a State from time to time and there is no reason to think the same principle would not apply in relation to s 39(2) of the Admiralty Act.  The jurisdictional limits which are respected do not include the absence of jurisdiction over the subject matter which is the subject of the conferral of federal jurisdiction (The Queen v Bull (1974) 131 CLR 203).

23. It is clear enough that the federal Parliament may, by express declaration in conferring federal jurisdiction, extend or limit the jurisdiction of a court of a State in respect of persons, locality, amount or otherwise (Peacock v Newtown Marrickville and General Co-operative Building Society (No 4) Ltd (1943) 67 CLR 25 per Latham CJ at 39). In Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545 the Deputy Commissioner of Taxation for Victoria prosecuted a company in a State court for breaches of the Sales Tax Assessment Act(No 1) 1930–1935.  That Act provided that a prosecution for an offence against the relevant section could be commenced at any time.  The Justices Act of the State provided for a time limit of 12 months.  It was submitted that the federal Parliament took the State court as it found it and that that included the time limit of 12 months.  Latham CJ rejected the submission and made it clear that by express declaration the federal Parliament could alter the jurisdictional limits of a State court.  He said (at 553 – 554):

    “But the view suggested is not supported by authority.  Even in relation to matters affecting jurisdiction (and a fortiori in relation to a provision such as sec 210 of the Justices Act, not affecting jurisdiction), this court has adopted a contrary view.  In Federated Sawmill Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander this question was considered and it was held that, where by a Commonwealth statute a new jurisdiction is conferred upon a State court, that court is to be taken as it is found, with all its limitations as to jurisdiction, unless otherwise expressly declared.  In sec 50(2) of the Sales Tax Assessment Act the Commonwealth Parliament has expressly declared that prosecutions under sec 12 of the Act may be commenced at any time. This is a declaration which excludes the application of sec 210 of the Justices Act in the case of such prosecutions.  It follows from the principle enunciated in the case cited that this declaration is effective and that it would be effective even if sec 210 were held to be a provision affecting the jurisdiction of Courts of Petty Sessions.”

24. One restriction on the power of the federal Parliament in relation to the courts of a State is that it may not alter the structure or organisation of those courts.  In Le Mesurier v Connor (1929) 42 CLR 481 Knox CJ, Rich and Dixon JJ said (at 495 – 496):

    “But the question at once arises whether the legislative power of the Commonwealth enables Parliament to regulate, in such a manner, the organization of Courts of States which it invests with Federal jurisdiction.  ‘The Constitution, by chapter III, draws the clearest distinction between Federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain “State Courts”’ (per Isaacs J in R v Murray and Cormie, and see per Higgins J and Gavan Duffy J and Rich J).  The Parliament may create Federal Courts, and over them and their organization it has ample power.  But the Courts of a State are the judicial organs of another Government.  They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised.  When a Court has been erected, its jurisdiction, whether in respect of place, person or subject matter, may be enlarged or restricted.  The extent of the jurisdiction of a State Court would naturally be determined by State law; and in the United States it was decided that the general legislative power of the Congress with respect to the subjects assigned to it did not enable Congress to confer additional jurisdiction upon State Courts (Martin v Hunter’s Lessee; Houston v Moore; Robertson v Baldwin). Sec 77 of the Commonwealth Constitution expressly confers upon the Parliament power to make laws investing the Courts of the States with Federal jurisdiction. But the provisions of sec 77 and sec 79, which explicitly give legislative power to the Commonwealth in respect of State Courts, make it plain that the general powers of the Parliament to legislate with respect to the subjects confided to it, like the similar powers of Congress, must not be interpreted as authorizing legislation giving jurisdiction to State Courts.

    It is no less certain that these general powers cannot be interpreted as authorizing legislation dealing with the organization of State Courts. The power conferred by sec 77(III) is expressed in terms which confine it to making laws investing State Courts with Federal jurisdiction. Like all other grants of legislative power this carries with it whatever is necessary to give effect to the power itself. But the power is to confer additional judicial authority upon a Court fully established by or under another legislature.”

    (See also Bond v George A Bond and Co Ltd and Bond’s Industries Ltd (1930) 44 CLR 11).

1. The federal Parliament’s power to invest the courts of a State with federal jurisdiction was considered by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The principles referred to above were acknowledged by various members of the Court (Brennan CJ at 67; Dawson J at 80 – 84; Gaudron J at 102). Reference was made to the following passage in the reasons for judgment of Gaudron J (at 102):

   “Once it is accepted that State courts are the creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State judges and the structure, organisation and jurisdictional limits of State courts.  In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them.  However, it should be remembered that that dictum originates in the judgment of Griffith CJ in Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander, a case involving the question whether jurisdictional limits imposed by State law on a State court applied in matters of invested federal jurisdiction.  It was in that context that his Honour said that ‘when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared’ – a vastly different statement from the unqualified proposition that the Commonwealth must take a State court as it finds it.”

2. I do not think that in this passage Gaudron J was suggesting that the federal Parliament could not by express declaration alter the jurisdictional limits of a State court.  Such a proposition would be contrary to well-established authority.

3. With respect, there is a useful summary of the relevant principles in the reasons for judgment of Sackville J in Ly v Jenkins (2001) 114 FCR 237 at 258 - 264.

4. The constitutional point in this case is quite a narrow one.  The federal Parliament has not by the provisions of the Admiralty Act sought to interfere with the structure or organisation of the courts of a State. Although by express declaration it could increase or limit the jurisdictional limits of the courts of a State, it has not sought to do so. In fact, s 39(2) of the Admiralty Act is a self-imposed limitation like s 39(2) of the Judiciary Act in that the federal Parliament has made it clear that it does not seek to invest federal jurisdiction in a State court beyond the limits of that court’s jurisdiction.

5. The second defendant submits that no constitutional issue arises because the legislative directive that the District Court has no jurisdiction in admiralty is a limit on the jurisdiction of the District Court which the federal Parliament by enacting s 39(2) of the Admiralty Act acknowledges and accepts. The plaintiffs submit that the second possible construction would not result in a limit on jurisdiction but a prohibition of jurisdiction. It is said that that is a very different matter from a limit on jurisdiction within the terms of s 39(2) of the Admiralty Act, and that it is not possible for a State law to repel federal jurisdiction vested in a State court by federal legislation enacted under the Constitution (ss 77(iii) and 109). It appears that there is no authority directly on point.

6. In my opinion, the plaintiffs’ submission is correct. The three courts in this State which have general civil jurisdiction at first instance are this Court, the District Court and the Magistrates Court. A monetary limit is a jurisdictional limit within s 39(2) of the Admiralty Act. I do not think a provision to the effect that a State court has no jurisdiction over a subject matter which is the subject of the investing of federal jurisdiction in that court is a jurisdictional limit within s 39(2) of the Admiralty Act. In other words, a jurisdictional limit within the terms of s 39(2) of the Admiralty Act does not include a provision which purports to prohibit the exercise of the federal jurisdiction invested in the State court by s 9 of the Act. Section 39(2) of the Admiralty Act is predicated on the basis that some federal jurisdiction is vested in the State court, albeit that limits on the jurisdiction of the State court are respected. The second possible construction involves a denial or repelling of federal jurisdiction and I do not think it is within the legislative competence of the South Australian Parliament to do that. It follows that this is an additional reason to adopt the construction of s 8(1) of the DCA which I think is the proper construction of the section (s 22A of the Acts Interpretation Act 1915).

7. There was some debate before us as to whether various specialist courts in this State such as the Environment Resources and Development Court (“the ERD Court”), established under the Environment Resources and Development Court Act 1993, have the jurisdiction referred to in s 9 of the Admiralty Act.  That question may be left for another day.  I am inclined to think that they do not have such jurisdiction.  They are courts established to deal with a particular subject matter and, for example, in the case of the ERD Court, to deal with rights of appeal given by the legislation establishing that Court or by related legislation.  They have no general civil jurisdiction at first instance.  The District Court is not such a court.

8. For the reasons I have given, I think the District Court has jurisdiction to hear and determine the plaintiffs’ claim by reason of s 9 of the Admiralty Act.

9. The plaintiffs and the Attorney-General put an alternative argument and that was that even if the second possible construction of s 8(1) of the DCA is the correct one, the plaintiffs’ claim was cognisable in the ordinary civil jurisdiction of the District Court.  They referred to Union Steamship Company of New Zealand Limited v The Ship Caradale, Her Cargo and Freight (1937) 56 CLR 277; Kali Boat Building and Repair Pty Ltd v The Motor Fishing Vessel “Bosna” and Others (1977) 19 SASR 112 and Blunden v Commonwealth [2003] HCA 73; (2003) 203 ALR 189; 78 ALJR 236. I do not think this is right on my understanding of the two possible constructions of s 8(1) of the DCA.  If my construction of the section is right then the District Court has jurisdiction over the plaintiffs’ claim either by reason of the federal jurisdiction invested in it under the Admiralty Act or, there being nothing in the Admiralty Act suggesting that an action in personam on a maritime claim may not be commenced except as provided in that Act, in the ordinary civil jurisdiction of the District Court over claims in contract, tort and pursuant to statutory provisions such as the relevant provisions of the Fair Trading Act1987 (SA).

10. If, on the other hand, the second defendant’s construction of s 8(1) of the DCA was the correct one then the District Court would not have jurisdiction over the matters of admiralty and maritime jurisdiction identified in the Admiralty Act and that would include the plaintiffs’ claim.

    Conclusion

11. For the reasons I have given, the answer to the question of law reserved for determination by this Court is yes.

    WHITE J

    Introduction

12. This is a decision on a question of law reserved for the consideration of the Full Court pursuant to s 44(2) of the District Court Act1991 (SA). The question reserved is:

    “Does the District Court have jurisdiction to hear and determine the plaintiffs’ claim?”

    The Plaintiffs’ Claims

13. In proceedings instituted in the District Court, the plaintiffs plead that, in 1995, they (or at least one of them) engaged the second defendant to design a seagoing twin-hulled motorboat approximately 18 metres in length, to be called “Moonshadow”.  The second defendant produced designs and construction schedules.  In 1996, the plaintiffs entered into a contract with the first defendant for the construction of Moonshadow in accordance with the design and schedules prepared by the second defendant.  The first defendant then commenced construction of the motorboat.

14. The plaintiffs allege a number of shortcomings and delays in the construction.  On 15 December 1998, the plaintiffs terminated the contract with the first defendant and arranged for the construction to be completed by another boat builder.  The motorboat was finally launched on 28 February 2000.  The plaintiffs were not satisfied with its construction or performance.  They allege that deficiencies in the design of the second defendant and in the construction by the first defendant are responsible.

15. It is unnecessary for the purposes of the case stated to recite further the allegations of the plaintiffs nor to distinguish between their respective roles in the transactions concerning Moonshadow.  It is sufficient to note that the claims against each of the first and second defendants include claims of breach of tortious duty of care and breach of contract.

    Section 8 of the District Court Act1991

16. Section 8 of the District Court Act provides the foundation for the submission of the second defendant which challenges the District Court’s jurisdiction. Section 8 provides for the civil jurisdiction of the District Court relevantly as follows:

    “(1)  The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however, to the following qualifications,

    (a)    the Court has no jurisdiction in probate or Admiralty;

    (b)    the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ.

    …

    (4)The Court has any other civil jurisdiction conferred by statute.

    …”

    The Case Stated

17. The statement of the question followed an application by the second defendant for an order that the proceedings be stayed or dismissed on the basis that the District Court lacked jurisdiction.  A District Court Master refused the order sought by the second defendant.  An appeal was lodged against that decision.  By agreement of both parties a District Court Judge reserved the question of law on a case stated to this Court.

18. The first defendant has not played an active role in the proceedings for some time, and did not present any argument on the case stated.

19. The second defendant argued that the plaintiffs’ claims are brought in Admiralty jurisdiction. It submitted that, by virtue of s 8(1)(a) of the District Court Act1991 (SA), the District Court of South Australia does not possess jurisdiction in Admiralty, and that it therefore lacks jurisdiction to determine the plaintiffs’ claims. The second defendant submitted that, properly construed, the Admiralty Act 1988 (Cth) did not confer jurisdiction in Admiralty on the District Court, or that, in the alternative, if it had, that that conferral was subject to the express exclusion of jurisdiction in Admiralty contained in s 8(1)(a).

20. The jurisdiction of the District Court over the plaintiffs’ claims depends upon the construction of, and the relationship between, s 8 of the District Court Act, s 39A of the Judiciary Act1903 (Cth) and ss 9 and 39 of the Admiralty Act.

21. It was thought that the submissions of the second defendant might raise a question of constitutional construction. Notices were issued under s 78B of the Judiciary Act.  The Attorney-General for South Australia, represented by the Solicitor-General, intervened pursuant to s 78A of that Act.  The Attorneys-General of the other States and of the Commonwealth indicated that they did not wish to make submissions at the hearing before the Full Court.

    A Claim in Admiralty

22. On one view, the plaintiffs’ claims are of a conventional type in the context of a dispute about the quality of a design provided by one person to another, and about the timeliness and adequacy of the construction work performed by one person for another.  The causes of action, and the issues involved are reasonably commonplace in the exercise of the District Court’s jurisdiction.

23. The second defendant’s submission, however, is that as the subject matter of the dispute is a sea-going boat, the plaintiffs’ claims involve an exercise of Admiralty jurisdiction. In short, the submission of the second defendant is that when the Court is asked to hear and determine a dispute about the design of a sea-going boat, and a dispute about its construction, it is being asked to exercise a jurisdiction in Admiralty within the meaning of s 8(1)(a) of the District Court Act.  Whether or not that is so depends upon the meaning in s 8(1)(a) of the expression “jurisdiction in … admiralty”.

24. The structure and language of s 8(1) of the District Court Act indicate that there is vested in the District Court the same civil jurisdiction as the Supreme Court possesses, subject to the qualification, relevantly, that the District Court does not have jurisdiction in Admiralty.  That suggests that the content of the “jurisdiction in admiralty” which s 8(1)(a) indicates is not vested in the District Court is the same as the content of the jurisdiction in Admiralty vested in the Supreme Court.  That is to say, the South Australian Parliament did not vest in the District Court jurisdiction with respect to those claims which could be brought in the Admiralty jurisdiction of the Supreme Court.

    The Admiralty Jurisdiction of the Supreme Court

25. The principal source of the Supreme Court’s Admiralty jurisdiction is the Admiralty Act.  It was enacted three years before the enactment of the District Court Act in 1991.

26. Part II of the Admiralty Act, which has the heading “Jurisdiction in Admiralty”, confers jurisdiction on specified courts in respect of “maritime claims”.  A “maritime claim” may be either a “proprietary maritime claim” or a “general maritime claim”: s 4(1). In general, a “proprietary maritime claim” is a claim relating to the possession of, title to, or security over, a ship: s 4(2). It is unnecessary for present purposes to be more particular.

27. A “general maritime claim” is defined in s 4(3) to include a wide variety of in personam claims.  It is not necessary to list the various types of claim which might be made.  Relevantly for the present case, it includes “a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched)”.  Those words are sufficiently wide to include the present claims of the plaintiffs with respect to design and construction.  The contrary was not argued on the hearing of the case stated.

28. Section 9, which forms part of Part II of the Admiralty Act, provides:

    “(1)  Jurisdiction is conferred on the Federal Court and on the Courts of the Territories, and the Courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam:

    (a)    on a maritime claim; or

    (b)    on a claim for damage done to a ship.

    (2)Sub-section (1) does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State with, jurisdiction in respect of limitation proceedings.”

29. Section 10, which also forms part of Part II of the Admiralty Act provides:

    “Jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction, in respect of proceedings that may, under this Act be commenced as actions in rem”.

30. The effect of s 9 is that jurisdiction is conferred on the Federal Court and on all State and Territory courts with respect to proceedings brought in personam[1]. On the other hand, the effect of s 10 is that only the Federal Court and the Supreme Court of the States and Territories have jurisdiction to hear claims brought in rem[2].

    [1]Owners of the Motor Vessel“Iran Amanat” v KMP Coastal Oil Pte Ltd [1999] HCA 11; (1999) 196 CLR 130 at 134 [9].

    [2][1999] HCA 11; (1999) 196 CLR 130 at 134 [9]. It is also possible under s 11 for other State and Territory courts to be vested, by proclamation of the Governor-General, with jurisdiction to hear and determine claims brought in rem.

31. The Admiralty Act1988 repealed the Colonial Courts of Admiralty Act 1890 (UK)[3] which had, prior to 1988, been the source of the Admiralty jurisdiction of the Supreme Court. Section 44 of the Admiralty Act provided that the 1890 Act was repealed “so far as it is part of the law of the Commonwealth or of an external Territory”.  That repeal should be understood as including a repeal insofar as the 1890 Act formed part of the law of a State.  This seems to follow from the reasoning of the majority in Kirmani v Captain Cook Cruises Pty Ltd[4]. The jurisdiction vested in the Supreme Court by ss 9 and 10 of the Admiralty Act should be regarded as the source of jurisdiction in Admiralty of the Supreme Court.[5]

    [3]        53 & 54 Vict, c 27.

    [4](1985) 159 CLR 351 at 382 per Mason J; at 385 per Murphy J, at 404 and 418-9 per Brennan J; at 420, 424 and 441 per Deane J. See also Amarantos Shipping v South Australia [2004] SASC 276, (2004) 89 SASR 438 at 443 [24], 448-9 [56]-[57] and 451 [71] per Doyle CJ.

    [5]It is unnecessary to consider whether there may be other sources.  See the Australian Law Reform Commission Report 33 “Civil Admiralty Jurisdiction” (1986) at [14].

32. The heading to Part II of the Admiralty Act  indicates that the jurisdiction conferred by the Part was regarded by the Commonwealth Parliament as a jurisdiction in Admiralty.  The heading of a Part of an Act forms part of the Act.[6]

    [6]        Acts Interpretation Act1901 (Cth), s 13.

33. It is true that the Admiralty Act  at times distinguishes between Admiralty jurisdiction and maritime jurisdiction[7] but I do not consider that that affects the conclusion just reached.  It may simply reflect the constitutional provisions which authorised, in part, the enactment of the Admiralty Act.[8]  It was not argued that the characterisation of the various types of claim which comprise proprietary maritime claims and general maritime claims as being within Admiralty jurisdiction was beyond the constitutional competence of the Commonwealth Parliament.

    [7] For example s 12 and s 14.

    [8] Constitution, s 76(ii) and s 77(iii).

34. If, as I consider to be the case, the content of the jurisdiction which the South Australian Parliament did not confer on the District Court is the Admiralty jurisdiction which vests in the Supreme Court, and that jurisdiction is the jurisdiction vested by ss 9 and 10 of the Admiralty Act, the District Court should be taken, in my opinion, not to have had conferred on it, by the District Court Act, any of the jurisdiction vested in State Courts by s 9 of the Admiralty Act. Put more shortly the South Australian Parliament must have intended that the content of the jurisdiction which it was not conferring on the District Court was the content of that jurisdiction vested in the Supreme Court by ss 9 and 10 of the Admiralty Act. 

35. The Magistrates Court Act (SA) was also enacted in 1991.[9] There is no equivalent of s 8(1)(a) in the Magistrates Court Act.  The Magistrates Court has jurisdiction (relevantly) to hear and determine claims, including in personam claims in the Admiralty jurisdiction, for damages of up to $40,000.  It might seem strange that the State Parliament was willing to permit the Magistrates Court to hear and determine in personam claims in the Admiralty jurisdiction up to a maximum of $40,000 but was not willing to confer a like jurisdiction in respect of larger claims on the District Court which is the principal trial court of this State.  I acknowledge that this incongruity exists, but it does not cause me to alter the conclusion which I have reached.

    [9]The Magistrates Court Act was Act No 73 of 1991 whereas the District Court Act was Act No 70 of 1991.  Both Acts were proclaimed to come into operation on the same day, namely, 6 July 1992.

1. I conclude therefore that the plaintiffs’ claims, being claims “in respect of the construction of a ship”, are claims in the Admiralty jurisdiction as that concept is used in s 8(1)(a) of the District Court Act.[10]  If s 8(1)(a) has the effect that the District Court is thereby precluded from exercising that jurisdiction, the question on the case stated should be answered in the negative.

   [10]I note that this conclusion is consistent with the decision of Spender J in Stingray Boats v Denmeade [2002] FCA 1446.

   The Effect of s 8(1)(a)

2. The second defendant submitted that s 8(1)(a) should be regarded as preventing the District Court from exercising any jurisdiction in Admiralty for one or other, or both, of two reasons. In the first place, it was submitted that, by virtue of s 39(2) of the Admiralty Act, jurisdiction was not vested in the District Court because the Admiralty Act itself expressly made the vesting of jurisdiction under s 9 subject to the limitations of jurisdiction of the District Court. One of those limitations was the qualification on the extent of the jurisdiction vested in the District Court by virtue of s 8(1)(a). In short, the submission was that s 39(2) of the Admiralty Act indicated that limitations on the jurisdiction of the District Court effected by s 8(1)(a) were respected by the Commonwealth Parliament, and that it had not purported to vest in the District Court a jurisdiction which the South Australian Parliament had stipulated it should not have.

3. Further, or in the alternative, it was submitted that it was within the legislative competence of the South Australian Parliament to preclude one of the courts of this State being vested with federal jurisdiction, and that s 8(1)(a) should be construed as having that effect.

4. I will consider these submissions in turn.

5. Before doing so, it is appropriate to say a little more about the effect of s 8(1)(a) of the District Court Act.  There was a tendency in the course of argument to treat s 8(1)(a) as containing an absolute prohibition of the vesting of any jurisdiction in Admiralty in the District Court.  On this view, not only had the South Australian Parliament itself not vested jurisdiction in Admiralty in the District Court, it had also conveyed an intention that the District Court should not have that jurisdiction from any other source.

6. This view of s 8(1)(a) draws some support from a comparison with s 8(1)(b). The latter indicates that the District Court has no supervisory jurisdiction “except as expressly provided by statute” with respect to specified matters.  Section 8(1)(a) does not contain the words just italicised or any equivalent.  Thus, it might be thought that the qualification that the Court had no jurisdiction in probate or Admiralty was itself entirely unqualified.

7. Notwithstanding this consideration, I do not consider that s 8(1)(a) should be regarded as containing an absolute prohibition on the District Court exercising Admiralty jurisdiction.  There is an alternative construction, namely, that the District Court is not, by virtue of the District Court Act itself, to have jurisdiction in Admiralty, but leaving open the possibility that such jurisdiction may be conferred by other legislation. Two considerations suggest that this is the preferable construction. The first is that s 8(1)(a), when read as a whole, is expressed in terms of a qualification of the jurisdiction vested by s 8(1), and not in terms of a prohibition. The second is that it permits full effect to be given to the words in s 8(4). That sub-section provides that the District Court has any other jurisdiction conferred by statute, ie, other than that conferred by sub-ss (1), (2) and (3) of s 8. In my opinion, the expression “any other civil jurisdiction” should be construed as meaning just that: any other civil jurisdiction, without qualification, and not, any jurisdiction other than that which has been expressly prohibited to the District Court.

8. I turn now to consider the submissions of the second defendant.

   The Effect of s 39(2) of the Admiralty Act

9. Section 39 of the Admiralty Act provides as follows:

   “(1)  Subject to any Proclamation made under subsection 11(2), where a court of a State is invested with jurisdiction in relation to a proceeding commenced as an action in rem, or such jurisdiction is conferred on a court of a Territory, by or under this Act, then:

   (a)    in the case of a court of a State—the court is invested with the jurisdiction within the limits of the jurisdiction of that court as to the amount claimed and as to remedies, but not otherwise; and

   (b) in the case of a court of a Territory—the jurisdiction is conferred on the court only so far as the Constitution permits and within the limits of the jurisdiction of that court as to the amount claimed, as to locality and as to remedies, but not otherwise.

   (2)Where a court of a State is invested with jurisdiction in relation to a proceeding commenced under section 9 or such jurisdiction is conferred on a court of a Territory, the jurisdiction is invested or conferred within the limits of the jurisdiction of the court concerned and, in the case of a court of a Territory, only so far as the Constitution permits.

   (3)Section 15C of the Acts Interpretation Act 1901 does not apply in relation to proceedings to which this section applies.”

10. The second defendant relied in particular on s 39(2).  Its submission was that s 39(2) indicated that the conferral of federal jurisdiction by s 9 of the Admiralty Act was subject to restrictions on the jurisdiction of State courts which existed when the relevant State court was brought into existence, and as varied from time to time.[11] In the present case, the qualification with respect to jurisdiction in Admiralty was, it was submitted, a limitation of the jurisdiction of the District Court to which s 39(2) referred. Thus, it was argued, although s 9 of the Admiralty Act considered by itself may have the effect of vesting jurisdiction in Admiralty in the District Court, that effect is denied by s 39(2).

    [11]Reliance was placed on Commonwealth v District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13.

11. The second defendant sought to derive assistance for this submission from ss 39 and 39A of the Judiciary Act.

12. Section 39 of the Judiciary Act provides:

    “39 (1)      The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.

    (2)    The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:

    (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

    Special leave to appeal from decisions of State Courts though State law prohibits appeal.

    (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.

    Exercise of federal jurisdiction by State Courts of summary jurisdiction.

    (d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred.”

13. Section 39A of the Judiciary Act provides:

    39A (1) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether the investing occurred or occurs before or after the commencement of this section, including federal jurisdiction invested by a provision of this Act other than the last preceding section:

    (a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2) of the last preceding section; and

    (b)shall be taken to be invested subject to the provisions of paragraphs (c) and (d) of that subsection (whether or not it is expressed to be invested subject to both or either of those provisions), so far as they are capable of application and are not inconsistent with a provision made by or under the Act by or under which the jurisdiction is invested; in addition to any other conditions or restrictions subject to which the jurisdiction is expressed to be invested.

    (2)    Nothing in this section or the last preceding section, or in any Act passed before the commencement of this section, shall be taken to prejudice the application of any of sections 72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences.”

14. Section 39A of the Judiciary Act refers to the vesting of federal jurisdiction in State courts by Acts other than the Judiciary Act. It recognises that a grant of federal jurisdiction by another Act may be expressed to be subject to conditions or restrictions. In the present case, the jurisdiction conferred by s 9 of the Admiralty Act is restricted to jurisdiction in respect of proceedings commenced as actions in personam. Further, the federal jurisdiction of courts other than the Federal Court and the State and Territory Supreme Courts is also expressed not to include jurisdiction with respect to limitation proceedings. The second defendant argued, in addition, that the stipulation in s 39(2) of the Admiralty Act that the jurisdiction is conferred “within the limits of the jurisdiction of the court concerned” was an additional restriction to which s 39A referred.

15. The second defendant argued that the Commonwealth Parliament, when investing a State court with federal jurisdiction, must “take the State court as it finds it”.  This expression is commonly used and derives from a passage in the judgment of Griffiths CJ in Federated Sawmill Timberyard and General Woodworkers’ Employes’ Association (Adelaide Branch) v Alexander (“Alexander’s case”):

    “I think that when the Federal Parliament confers a new jurisdiction on an existing State Court it takes the court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared.”[12]

    [12] (1912) 15 CLR 308 at 313.

16. The second defendant also relied on the following passage from the judgment of Gaudron J in Kable v Director of Public Prosecutions (NSW) (“Kable’s case”):

    “Once it is accepted that State courts are the creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State Judges and the structure, organisation and jurisdictional limits of State courts.  In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them.”[13]

    In Alexander’s case, the question was whether a State law, which provided that a complaint in a court of summary jurisdiction must be brought within six months from the time the subject matter of the complaint arose, was displaced by a general conferral of federal jurisdiction in that Court. The Court held that the general restriction on the jurisdiction of the court of summary jurisdiction was applicable to matters arising under a Federal law and brought within federal jurisdiction exercised by the State court pursuant to s 39 of the Judiciary Act.  Kable’s case was not directly concerned with the power of the Commonwealth Parliament to vest federal jurisdiction in the State courts.  Rather, it involved a distinct question about limitations on the power of State Parliaments to confer particular functions on State courts.

    [13] (1996) 189 CLR 51 at 102.

17. The extent to which legislation enacted by the Commonwealth Parliament may impact on the functioning of a State court has been considered by the High Court in a number of decisions.[14] In general, those decisions have concerned the validity of the exercise of the power contained in s 77(iii) of the Constitution rather than the effect of the self-imposed limitations contained in s 39(2) of the Judiciary Act. 

    [14]Le Mesurier v Connor (1929) 42 CLR 481 at 495-6 per Knox CJ, Rich and Dixon JJ; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-5 per Latham CJ; Peacock v Newtown Marrickville and General Co-operative Building Society (No 4) Ltd (“Peacock’s case”) (1943) 67 CLR 25 at 37-8 per Latham CJ; Kotsis v Kotsis (1970) 122 CLR 69 at 109 per Gibbs J; Russell v Russell (1976) 134 CLR 495 at 516-519 per Gibbs J, at 530 per Stephen J, at 535 per Mason J and at 554 per Jacobs J; Brown v The Queen (1986) 160 CLR 171 at 198-9 per Brennan J.

18. In Peacock’s case, Latham CJ said, with reference to s 77(iii) of the Constitution:

    “This is a power to give new, additional, jurisdiction to State courts. The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. It may make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved; or, as in the Judiciary Act 1903-1940, sec 39, it may allow the State law to operate in respect of such matters. But the State court must be taken as it exists. The constitutional structure of the court cannot be changed by the Federal Parliament.”[15]

    [15](1943) 67 CLR 25 at 37 per Latham CJ.

19. In Russell v Russell, Jacobs J, also with reference to s 77(iii), said:

    “… the Parliament in its investing of a State court with federal jurisdiction is not limited by the existing jurisdiction of the State court in any sense of the word ‘jurisdiction’. The investing with federal jurisdiction will in one sense itself be an extension of any existing jurisdiction of a State court. If the word ‘jurisdiction’ is used in the sense of the extent or limitation thereof by reference to subject matter or the value thereof, place or time for commencement of proceedings or the like, the Commonwealth Parliament is not limited by provisions in State law in these respects, though by s 39(2) of the Judiciary Act 1903-1973 it has recognised and respected some of these limitations on jurisdiction.”[16]

    [16] (1976) 134 CLR 495 at 554. See also R v Bull (1974) 131 CLR 203 at 257-259.

20. The principle established in the High Court decisions may be summarised as follows: the Commonwealth Parliament may, under s 77(iii) of the Constitution, confer jurisdiction on State courts and in doing so may expand the jurisdiction of those courts, but may not affect the character, constitution, composition, structure or organisation of State courts.[17]  Thus, the Commonwealth Parliament, cannot, for example, control the appointment of judges to State courts, nor can it require trials by jury to be held in State courts which, under State law, may not be constituted by a judge sitting with a jury.[18]

    [17]The exception being that the Commonwealth may prescribe the number of Judges who may exercise the federal jurisdiction of the court: see Constitution, s 79.

    [18]Brown v The Queen (1986) 160 CLR 171 at 198-200 per Brennan J; Fardon v Attorney-General (Q) [2004] HCA 46 at [39]; (2004) 210 ALR 50; 78 ALJR 1519 per McHugh J.

21. There was no suggestion that, in this case, there has been an attempt by the Commonwealth Parliament to alter the constitution, composition, organisation or structure of the District Court in the applicable sense. Although relying on cases decided by reference to s 77(iii) of the Constitution, the second defendant’s submissions were directed to s 39(2) of the Admiralty Act.

22. In my opinion, the phrase “within the limits of the jursidiction of the court concerned” in s 39(2) of the Admiralty Act is not to be understood as referring to the extent of the jurisdiction, at least insofar as it concerns subject matter, vested in a State court by a State Act.  The word “jurisdiction” in the phrases “invested with jurisdiction”, “such jurisdiction is conferred” and “the jurisdiction is invested” used in s 39(2) of the Admiralty Act is not to be understood as having the same meaning as the word “jurisdiction” used in the phrase “within the limits of the jurisdiction of the court concerned” where it appears in the same sub-section.  If the word “jurisdiction” was to be understood as having the same meaning each time it is used in s 39(2), it would be impossible for the Commonwealth Parliament to vest any federal jurisdiction in a court without exceeding that court’s previous “limits of jurisdiction”, since a State court would possess only non-federal jurisdiction until vested with federal jurisdiction.

23. Nor, in my opinion, can the conferral of jurisdiction “within the limits of the jurisdiction of the court concerned” mean that a State court can be vested with jurisdiction only over those matters in relation to which it already had jurisdiction under State law.  That would be too restrictive an approach. 

24. In R v Bull, Gibbs J, with reference to s 39(2) of the Judiciary Act, said:

    “The federal jurisdiction is conferred on the State courts only ‘within the limits of their several jurisdictions’.  This provision of course cannot mean that a State court can only be invested with federal jurisdiction to deal with a matter if it already has jurisdiction under State law to deal with that very matter.  It ‘must be construed as relating to matters arising under federal Statutes, and being of a nature analogous to those over which such Courts respectively have jurisdiction under State laws, and as also including any other matters in respect of which jurisdiction is conferred by a Federal Statute, but so that in all respects other than subject matter the provisions of the State law … shall prevail’.”[19]

    [19] (1974) 131 CLR 203 at 258, quoting from Alexander’s case (1912) 15 CLR 308 at 312.

25. The “limits of the jurisdiction” to which the grant of admiralty jurisdiction is subject by virtue of s 39(2) of the Admiralty Act must therefore be understood as referring to something different from the subject matter over which the State Court had jurisdiction prior to the conferral of the federal jurisdiction. It may, dependent on context, be a reference to limitation on the nature of the remedies which may be awarded, to limitations on the court’s power to award damages whose quantum exceeds a specified amount,[20] to time limitations which apply to the commencement of actions in the court,[21] or to the geographical area with which claims must have a sufficient nexus in order to brought in to the court.[22]

    [20] Cf Peacock’s case (1943) 67 CLR 25 at 37 per Latham CJ.

    [21] Alexander’s case (1912) 15 CLR 308.

    [22] Alexander’s case (1912) 15 CLR 308 at 322 per Isaacs J.

26. There is a further difficulty with the submission of the second defendant. That submission, if accepted, would have the result that s 39(2) of the Admiralty Act, when applied to s 8(1)(a), would prevent the jurisdiction otherwise conferred by s 9 of the Admiralty Act from being conferred at all.  But as a matter of structure and language, that is not the effect of s 39(2).  The limits of the jurisdiction to which s 39(2) refer are limits which become operative only after or upon the jurisdiction being conferred.  Put slightly differently, the stipulation that the jurisdiction is conferred within the limits of the jurisdiction of the court concerned presupposes that the jurisdiction is conferred.  Once conferred, it is subject to the limitations of the jurisdiction of the court concerned.  Those limitations cannot preclude the conferral of jurisdiction in the first place.

1. Even if the submission of the second defendant is to be understood as meaning that the District Court may have conferred on it the in personam jurisdiction by s 9 of the Admiralty Act, but could not, by reason of s 39(2) exercise that jurisdiction, it still faces a difficulty.  It is not within the legislative competence of a State Parliament to preclude one of its courts, whilst it continues in existence, from exercising a federal jurisdiction which has been conferred upon it.

2. It follows from what I have said above that the second defendant’s submission that the effect of s 39(2) of the Admiralty Act, when applied to the qualification on the jurisdiction of the District Court contained in s 8(1)(a) of the District Court Act, means that the District Court is precluded from exercising jurisdiction over in personam Admiralty matters, should be rejected.

3. Further, if it was necessary to do so, I would uphold an alternative submission by the plaintiffs in response to the submission of the second defendant. That submission was to the effect that whatever may be the purport of s 8(1)(a) of the District Court Act, the Parliament had explicitly contemplated by s 8(4) that “other civil jurisdiction” may be conferred on the District Court by statute. That conferral of jurisdiction was capable, it was submitted, of including without any limitation or restriction, the jurisdiction which would otherwise be vested in the District Court by s 9 of the Admiralty Act. 

4. I turn now to the alternative submission of the second defendant.

   A State Act Precluding the Conferral by a Commonwealth Act of Jurisdiction in a State Court

5. The second defendant submitted that the Commonwealth Parliament could not, by s 9 of the Admiralty Act, “foist upon the State [court] the jurisdiction if the State does not want it.”  It was submitted that, in the present case, the State Parliament having, by s 8(1)(a), indicated that the District Court is not to have jurisdiction in Admiralty, that position cannot be reversed by the Commonwealth Parliament.  In short, the submission was that a State Parliament could prevent the Commonwealth Parliament conferring jurisdiction on one of its State courts. 

6. In my opinion, this submission should not be accepted. The power in s 77(iii) of the Constitution to confer federal jurisdiction on State courts is not made subject to the views of the State Parliaments, nor to conditions which might be imposed by State Parliaments. Their consent, or at least absence of objection, to the grant of the federal jurisdiction is not a condition of the exercise of the power contained in s 77(iii). The State Parliaments lack the power to preclude an investing of federal jurisdiction in their courts. Alternatively, if they do have such a power, its exercise would be inconsistent with the Commonwealth law vesting jurisdiction in the State courts and would accordingly be inoperative by virtue of s 109 of the Constitution.

7. If it be correct to say that the Parliament of a State could prevent the Commonwealth Parliament from vesting federal jurisdiction in some of its courts, it is difficult to see why it could not prevent the conferral of federal jurisdiction in any State court, including the Supreme Court. If the second defendant’s argument was accepted, each State might provide that its courts should exercise no federal jurisdiction at all, thus entirely frustrating the exercise of power pursuant to s 77(iii). In that circumstance, the “autochthonous expedient”[23] would be frustrated.

   [23]R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

   State Inferior and Specialty Courts

8. The second defendant made an alternative submission.  Whilst a State Parliament may not be able to legislate to prevent federal jurisdiction being vested in the State Supreme Court it could, it was submitted, enact such legislation with respect to the inferior or specialty courts of the State.  Examples of such courts in South Australia include the Environment, Resources and Development Court[24], the Licensing Court[25] and the Industrial Relations Court[26].

   [24]      Established by the Environment, Resources and Development Court Act1993, s 4.

   [25]      Continued in existence by the Liquor Licensing Act1997, s 12.

   [26]      Continued in existence by the Industrial and Employee Relations Act 1994, s 8.

9. It follows from what has been said above that the Commonwealth Parliament has power to invest State inferior and specialty courts with federal jurisdiction. Section 77(iii), unlike other sections in Chapter III of the Constitution, does not differentiate between State Supreme Courts and other State courts. Assuming that each specialty court is properly characterised as a “court” within the meaning of s 77(iii) of the Constitution, there is nothing, in my opinion, to prevent the Commonwealth Parliament from vesting or all or any of the inferior or specialty courts with federal jurisdiction over any of the matters referred to in ss 75 and 76.

10. However, in the case of some inferior and specialty courts, the limitations on the conferral of federal jurisdiction contained in s 39(2) of the Judiciary Act may be of greater significance.  Some inferior and specialty courts are likely to have limitations on available remedies, subject matter and powers.  It may be that the “limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise” to which s 39(2) of the Judiciary Act refers would apply to limitations of those kinds.[27]  It is not necessary to consider this further as the District Court is plainly not a specialty court.  The only relevant limitation on its jurisdiction is the limitation upon which the second defendant relied on the case stated. 

    [27]      Cf R v Bull (1974) 131 CLR 203 at 258 per Gibbs J.

11. I would reject this alternative submission of the second defendant.  For the reasons already given, I do not consider that the State Parliament can legislate to preclude the vesting of federal jurisdiction in the District Court.

    Conclusion

12. In summary, in my opinion, the claims brought by the plaintiffs are claims in Admiralty jurisdiction as that expression is used in s 8(1)(a) of the District Court Act. However, s 8(1)(a) does not preclude the District Court from hearing and determining the plaintiffs’ claims. Jurisdiction to hear and determine those claims is vested in the District Court by ss 9 and 39 of the Admiralty Act.  The exercise of that jurisdiction is not affected by s 8(1)(a).

13. Accordingly, in my opinion, the question reserved for the consideration of the Full Court should be answered in the affirmative.