Dinnison, Barrie Charles v Commonwealth of Australia
[1997] FCA 284
•22 APRIL 1997
CATCHWORDS
PRACTICE AND PROCEDURE - cross-vesting legislation - power of Federal Court to transfer to the Supreme Court of a State a matter remitted to it by the High Court - nature of jurisdiction exercised on remitter.
Judiciary Act 1903 (Cth) - s 44(1), s 44(2A), s 44(3), s 56
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - s 4(1), s 5(4)
State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579
Bowtell v the Commonwealth (1989) 86 ALR 31
Johnstone v The Commonwealth (1979) 143 CLR 398
McCauley v Hamilton Island Enterprises Pty Limited (1986) 69 ALR 270
Commonwealth of Australia v Mewett (1994) 126 ALR 391
Bozniak v Smith (1982) 151 CLR 38
BARRIE CHARLES DINNISON -v- COMMONWEALTH OF AUSTRALIA
No. NG 572 of 1991
CORAM: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 572 of 1991
)
GENERAL DIVISION )
BETWEEN:BARRIE CHARLES DINNISON
Applicant
AND:COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE MAKING ORDERS: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1.These proceedings be adjourned to a date to be fixed.
2.Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 572 of 1991
)
GENERAL DIVISION )
BETWEEN:BARRIE CHARLES DINNISON
Applicant
AND:COMMONWEALTH OF AUSTRALIA
Respondent
CORAM: FOSTER J
DATE: 22 APRIL 1997
PLACE: SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR: In these proceedings the applicant has brought a notice of motion seeking an order that the proceedings be transferred to the Supreme Court of New South Wales for hearing pursuant to the provisions of s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Act").
A number of matters were raised in written submissions by the respondent, the Commonwealth of Australia ("the Commonwealth"), as to why I should not exercise the discretion given by that section to order such a transfer. These submissions, in the event, were not developed as the parties sought my decision on the preliminary question as to whether this Court had power to order such a transfer. Accordingly, in response to the joint request of the applicant and the Commonwealth I address only that question in these reasons.
The submission of the Commonwealth may be stated succinctly. These proceedings were commenced in the original jurisdiction of the High Court of Australia. By order of that Court, pursuant to s 44 of the Judiciary Act 1903 (Cth), made on 22 August 1991 they were remitted to this Court. It was put that in these circumstances this Court was in fact exercising the jurisdiction of the High Court in relation to the hearing and disposal of the proceeding. That being so, as the High Court of Australia was not bound by the provisions of the Act, this Court, in relation to these proceedings, had no power to make the orders sought for their transfer to the Supreme Court of New South Wales.
Reliance was placed upon decided cases to which I shall make reference and also upon the provisions of s 44 of the Judiciary Act. It is convenient, in the first instance, to set out that section in full. It provides as follows:-
"44 (1) Any matter other than a matter to which sub-section (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the Court to which it is remitted.
(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.
(2a) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.
(3) Where the High Court remits a matter, or any part of a matter, under sub-section (2) or (2a) to a court -
(a)that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and
(b)subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court."
Remittal of High Court proceedings to this Court is authorised both under ss 44(1) and (2A). It has been held that s 44(2A) provides an additional independent power of remittal. The fact that this overlaps with the power granted by s 44(1) provides no reason for any narrow interpretation of s 44(2A) (State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579, per Gibbs CJ; Bowtell v The Commonwealth (1989) 86 ALR 31 at 33-4, per Toohey J). It has also been stated that the section should not be given any narrow or restrictive interpretation. In Johnstone v The Commonwealth (1979) 143 CLR 398 the question for decision by the High Court was whether the section authorised remittal of proceedings brought against the Commonwealth as defendant in the High Court to the Supreme Court of a State in
circumstances where the Commonwealth could not have been sued in proceedings brought directly in that Court. In holding that the section should not be given "a narrow restrictive construction", Gibbs J said (at 402):
"I conclude that when a person making a claim against the Commonwealth in tort brings a suit against the Commonwealth in this Court, s. 44 empowers this Court to remit the matter to a court which has jurisdiction in tort and in matters in which the Commonwealth is a defendant, although that court would not have had jurisdiction if proceedings had been instituted there in the first instance. Since all the Supreme Court of the States have jurisdiction in actions in tort, and jurisdiction to entertain proceedings in which the Commonwealth is a defendant, it follows that this Court has power to remit to any Supreme Court of a State a pending matter in which a claim in tort is brought against the Commonwealth."
Also Aickin J, after examining various arguments said (at 408-409):-
"These considerations appear to me to support the view that the effect of s. 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matter in which this Court has federal jurisdiction by virtue of s. 75 of the Constitution. That jurisdiction is coextensive with the jurisdiction of this Court, subject only to the Supreme Court having jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction, without investigation of the question whether the Supreme Court would have had jurisdiction (whether State or Federal) over the particular parties and the particular subject matter if the action in question had been commenced in that Supreme Court rather than in the High Court.
This jurisdiction is conferred on the State courts by the Parliament, not by this Court. What s. 44 does is not to authorize this Court to confer federal jurisdiction on the State courts. What it does is to confer federal jurisdiction on State courts in cases where this Court is authorized to
remit the proceedings to State courts and does in fact so remit."
I am satisfied that where, as in the present case, the remittal is to this Court rather than to the Supreme Court of a State, there is a conferral of Federal jurisdiction in the manner set out in this passage. The High Court has, pursuant to the powers conferred by s 44(1) and 44(2A), remitted these proceedings to this Court with the result that jurisdiction has been conferred upon it to determine the matters "coextensive with the jurisdiction of" the High Court to hear and determine the claims thus brought against the Commonwealth. It should be remembered, of course, that s 56 of the Judiciary Act does not empower this Court, unlike the Supreme Courts of the States, to hear and determine claims against the Commonwealth. This Court can only obtain such jurisdiction, pursuant to s 44 of the Judiciary Act, by way of remittal of proceedings commenced in the original jurisdiction of the High Court under s 75(iii) of the Constitution of the Commonwealth.
It is convenient, at this point, to consider the relevant provisions of the Act. So far as relevant they are as follows:-
"4. (1) Where:
(a)the Federal Court ... has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b)the Supreme Court of a State ... would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c)in the case of the Supreme Court of a State ... that court is invested with federal jurisdiction with respect to that matter;
...
(4) Where:
(a)a proceeding (in this subsection referred to as the `relevant proceeding') is pending in the Federal Court ... (in this subsection referred to as the `first court'); and
(b)it appears to the first court that:
...
(iii) it is ... in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;
The first court shall transfer the relevant proceeding to that Supreme Court."
It would seem, clearly enough, from a reading of these sections that prima facie the Act empowers this Court to make an order transferring the present proceedings to the Supreme Court of New South Wales. This Court, as a result of the prior orders of the High Court has jurisdiction with respect to the relevant civil matter, that jurisdiction having been conferred upon it by s 44 of the Judiciary Act as a result of the relevant remittal order (s 4(1)(a) of the Act). Furthermore, as the proceedings are "pending in the Federal Court" this Court has power to consider whether it is in the interests of justice that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(4)(b)(iii) of the Act.
It is submitted, however, on behalf of the Commonwealth, that this view is not correct. It is contended that the nature of the jurisdiction exercised by this Court when proceedings against the Commonwealth are remitted to it from the High Court is not such as to attract power to transfer under s 5(4) of the Act. The argument is that the remitted jurisdiction, in effect, remains the jurisdiction of the High Court and does not become the jurisdiction of this Court to the extent that it would permit this Court to exercise powers under s 5(4) of the Act which are not available to the High Court.
This submission is founded upon descriptions of the jurisdiction conferred on this Court as a result of the making of relevant remittal orders under s 44 of the Judiciary Act, such descriptions being found in two cases to which I shall now make reference.
The first is McCauley v Hamilton Island Enterprises Pty Limited (1986) 69 ALR 270. In this case the plaintiff had suffered injuries in a helicopter accident on a pontoon located within the Great Barrier Reef Marine Park. The Park was administered by the Great Barrier Reef Marine Park Authority, a Commonwealth instrumentality. It was sued together with two other defendants in proceedings which were found by Mason J to have been appropriately brought in the original jurisdiction of the High Court. His Honour was required to decide, inter alia, whether the proceedings should be remitted either to the Federal Court or the Supreme Court of New South Wales. The defendants' contention was that the more appropriate forum for remittal was the Supreme Court of Queensland. In deciding that the proceedings should be remitted to the Federal Court his Honour said "the Federal Court ... relevantly stands in the jurisdictional shoes of this Court by virtue of a remitter under s 44(2A) of the Judiciary Act. This Court has jurisdiction in the action by virtue of s 75(iii) of the Constitution and s 44 (2A) enables that jurisdiction to be remitted to the Federal Court."
In Commonwealth of Australia v Mewett (1994) 126 ALR 391, the plaintiff, Mewett, had commenced proceedings in the Sydney office of the High Court against the Commonwealth claiming damages in respect of injuries sustained aboard a naval vessel in Port Phillip Bay, Victoria, in 1979. In the context of consideration of a submission on behalf of the Commonwealth that the Limitation Act 1969 (NSW) applied to Mewett's claim, I made the following comments (at 401-2):-
"It may be that claims against the Commonwealth commenced in the High Court can also be remitted to the Federal Court of Australia under s 44(1). There is no need to consider that question here. The significant matter is that the Federal Court of Australia can gain jurisdiction in suits against the Commonwealth only by remitter of such suits from the High Court. It seems clear that when it receives jurisdiction in such matters in this way it is, in effect, exercising, in a derivative or surrogate fashion, the jurisdiction of the High Court in respect of the proceedings remitted. In McCauley v Hamilton Island Enterprises Pty Limited & Ors (1986) 69 ALR 270 at 275, Mason J said that in the case of remitter from the High Court to this Court under s 44(2A) that this Court "relevantly stands in the jurisdictional shoes" of the High Court. Also, in State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579; 53 ALR 625, where the High Court was required to determine whether a remitter from the High Court should be to the Supreme Court of New South Wales or to the Federal Court, Gibbs CJ said (at CLR 587; ALR 630)
"it is clear that the law to be applied in the Federal Court would be the same as that applicable in this Court...". Accordingly, it is clear that in determining what law is to be applied in relation to Mewett's claim in this Court, it is necessary to determine what law would have been applied in the High Court if no remitter had taken place. This does not mean, of course, that this Court must apply the purely procedural rules of the High Court rather than its own. Once the remitter has occurred, this Court must deal with the case in accordance with its own procedures in relation to interlocutory steps and the hearing."
These two passages are relied upon by the Commonwealth as founding the submission that, in some way, a case remitted to this Court by the High Court pursuant to s 44(1) and 44(2A) remains, nevertheless, a High Court case and is therefore insulated from the provisions of the Act. I am satisfied that a remitter does not have this effect; nor do these passages suggest that it does. Both passages serve to emphasise that this Court has no original jurisdiction in respect of claims against the Commonwealth and can obtain that jurisdiction only by way of proceedings being remitted to it from the High Court. The second passage, from Mewett, must be read in the context of the topic under consideration, namely the appropriate choice of law for determination of the dispute.
I am satisfied that once a High Court matter has been remitted to this Court for hearing it becomes a proceeding in this Court to be determined, in all respects, in accordance with this Court's procedures and in accordance with any relevant statute law impinging upon those procedures. There is no suggestion that, once the remitter has taken effect, the proceedings have any further connection with the High Court. No interlocutory steps are to be taken in the High Court and the judgment given in the proceedings is a judgment of this Court.
On behalf of the Commonwealth reference was made to the provisions of s 44(3)(b), where the phrase "subject to any directions of the High Court" appears. It is clear, in my view, that this portion of the sub-section relates only to the power of the High Court to give directions as to matters of procedure in conjunction with and in aid of the order for remitter (Bozniak v Smith (1982) 151 CLR 38 at 44). They do not empower the High Court to consider any application for directions in respect of the remitted matter once the remittal has taken effect. After that point is reached all relevant directions fall within the jurisdiction of this Court.
It was further submitted on behalf of the Commonwealth that, insofar as the order remitting these cases to this Court involved a selection by the High Court of the appropriate forum for their hearing and determination, it should be implied that there could be no residual power in this Court, pursuant to the Act or otherwise, to transfer the proceedings from its jurisdiction to that of another court. I do not regard this as an argument going to the power of this Court to transfer, although it may be, in certain circumstances, a potent argument against the exercise of a
discretion to transfer the proceedings from this Court to another Court. There must, necessarily, be circumstances where a change of situation from that obtaining when the remitter was made may well indicate the desirability of the proceedings no longer being heard in the Federal Court. I am satisfied that, contrary to the submission of the Commonwealth, the portion of s 44(3)(b) referred to above would not, in such circumstances, require the seeking of further directions from the High Court for a variation in the remittal order. As I have said, it is my view that after the remittal order has taken effect any power in the High Court to give further directions is spent.
I am fortified in these views by the fact that neither s 4 or s 5 of the Act nor, indeed, any other sections of the Act, specifically exclude from proceedings which may be transferred by the Federal Court, proceedings which have come to the Court by way of remitter from the High Court.
Accordingly, I am of the opinion and so hold that I have power in the present proceedings to make orders pursuant to s 5(4) of the Act transferring the proceedings to the Supreme Court of New South Wales. The parties indicated that they would wish to consider their position after I had decided this point. Accordingly, at this stage, I will merely adjourn the proceedings to a date to be fixed and reserve the question of costs.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.
Associate:
Date: 22 APRIL 1997
A P P E A R A N C E S
COUNSEL FOR THE APPLICANT: MR A. PUCKERIDGE QC
with MR R. WILKINS
INSTRUCTED BY: MAURICE MAY & CO
COUNSEL FOR THE RESPONDENT: MR M. JOSEPH SC
INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING: 16 DECEMBER 1996
DATE OF JUDGMENT: 22 APRIL 1997
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