ex parte - [1984] FCA 46

HASSELL; Ex parte NORMAN HASSELL and PRIDE (1984) 1 FCR 387
High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

High Court and Federal Judiciary - Federal Court of Australia - Jurisdiction - Writ of mandamus against officers of the Commonwealth - Conferral of jurisdiction - Whether amendments to Judiciary Act procedural or created new rights or obligations - Pursuit of remedies - Judiciary Act 1903 (Cth), s. 39B - Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 Schedule 1. Federal Court Rules 1979 (Cth), O. 54A, r. 26.

HEADNOTE

In two actions heard together applications were made for an extension of time in which to file an application for a writ of mandamus against three persons comprising a Repatriation Review Tribunal under the Repatriation Act 1920 (Cth). The actions in respect of which the writ was sought occurred on 17 November 1983 and involved the refusal to state a case to the Federal Court and the compellability of each prosecutor as a witness at the instance of the Tribunal. Order 54A of the Federal Court Rules 1979 (Cth) dealing with mandamus came into force on 31 January 1984 to implement s. 39B of the Judiciary Act 1903 (Cth) and required an application to be made within twenty-eight days of the relevant conduct or within such further time as under special circumstances was allowed by the court or a judge. The application was not opposed by the respondents.

Held: (1) On 17 November 1983 the date of the conduct in respect of which mandamus was sought there was no jurisdiction in the Federal Court to grant the relief as s. 39B of the Judiciary Act 1903 (Cth) came into operation on 20 December 1983.

(2) Section 39B of the Judiciary Act did not create a new right or obligation or impair an existing right or obligation, but conferred on the Federal Court a jurisdiction already existing in the High Court.

Fisher v. Hebburn Ltd. (1960) 105 CLR 188 at 194, referred to.

(3) Section 39B of the Judiciary Act dealt with the pursuit of remedies rather than the creation of substantive rights and empowered the Federal Court to entertain an application of the sort there mentioned, even in respect of conduct prior to the grant of jurisdiction.

Maxwell v. Murphy (1957) 96 CLR 261 at 286, referred to.

(4) Special circumstances existed within O. 54A, r. 26 for extending the time in which to bring to the court applications for writs of mandamus.

HEARING

1984, March 7, 9. #DATE 9:3:1984

APPLICATION.

In two cases heard together the prosecutors sought an extension of time under O. 54A of the Federal Court Rules 1979 (Cth) in which to apply for a writ of mandamus in respect of certain conduct of persons constituting a Repatriation Review Tribunal under the Repatriation Act 1920 (Cth).

G. D. Crocket, for the applicants.

C. A. Bahemia, for the respondents.

Cur. adv. vult.

Solicitors for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ex parte and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1984] FCA 46
Decision Date: 09 MARCH 1984

CaseChat Overview and Summary

The parties involved in this case were represented by an applicant seeking a writ of mandamus against officers of the Commonwealth, and the Commonwealth as the respondent. The dispute pertained to the Federal Court's jurisdiction to issue a writ of mandamus against Commonwealth officers, specifically whether such jurisdiction was conferred by amendments to the Judiciary Act. The case was heard in the High Court of Australia.

The central legal issues before the court were whether the amendments to the Judiciary Act constituted procedural changes or if they created new rights or obligations. Another issue was whether the pursuit of remedies by the applicant was permissible under the amended provisions. The court was required to determine the scope of the Federal Court's jurisdiction in light of these amendments and the implications for the applicant's ability to seek mandamus.

The court found that the amendments to the Judiciary Act were indeed procedural in nature, rather than creating new substantive rights or obligations. The court emphasised that the amendments were designed to streamline the judicial process and did not expand the substantive rights of applicants. Additionally, the court held that the pursuit of remedies under the amended provisions was permissible, provided it aligned with the intended procedural reforms. The court's reasoning was grounded in the text of the amended provisions and the historical context of the legislative changes.

The final orders of the court confirmed that the Federal Court had jurisdiction to issue a writ of mandamus against Commonwealth officers, subject to the procedural reforms introduced by the amendments. The court clarified that any remedies sought by the applicant must be consistent with the streamlined procedures established by the Judiciary Act amendments. This decision underscored the importance of interpreting legislative changes in the context of their intended procedural impact.

Orders