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 applicants: Muir, Williams & Nicholson.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown Solicitor.

T.J.G.

JUDGE1

9 March 1984

TOOHEY J. Order 54A of the Federal Court Rules 1979 (Cth) came into force on 31 January 1984. That order deals with mandamus, prohibition and an injunction against an officer or officers of the Commonwealth.

1. Order 54A, r. 26 requires an application for a writ of mandamus to a tribunal to hear and determine a matter to be made "within 28 days of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Judge".

2. The court has before it two applications for extension of time in which to file an application for a writ of mandamus against three persons who together comprise a Repatriation Review Tribunal under the provisions of the Repatriation Act 1920 (Cth). The conduct under challenge took place on 17 November 1983, hence the need to obtain an extension of time. The conduct in each case was a refusal to state a case to the Federal Court under s. 107VZZG(1) of the Repatriation Act 1920 and also concerned the compellability of each prosecutor as a witness at the instance of the Tribunal.

3. Those matters were the subject of appeals to this Court pursuant to s. 107VZZH of the Repatriation Act 1920 but objection was taken that there was no "decision" from which an appeal could lie. Apparently accepting that there is some force in the objection, the prosecutors now seek to proceed under O. 54A.

4. The members of the Tribunal, who will be the respondents to an application for a writ of mandamus if an extension of time is granted, do not oppose an extension of time and I am satisfied that there are special circumstances why an extension should be granted. The machinery of O. 54A was simply not available on 17 November 1983. My reason for reserving decision on each of the applications was some concern as to whether, having regard to the timing of events, the court had power to do what was asked.

5. Order 54A came into existence to implement s. 39B of the Judiciary Act 1903 (Cth), subs. (1) of which reads:
   
   

"The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

1. Section 39B was introduced as part of Sched. 1 to the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 which was expressed to come into operation on the twenty-eighth day after the day on which it received the Royal Assent. It was assented to on 22 November 1983; hence it came into operation on 20 December 1983. Thus, on 17 November 1983, which is the date of the conduct in respect of which mandamus is sought, there was no jurisdiction in the Federal Court to grant that relief. The question is - do s. 39B and O. 54A operate so that this Court may, by extension of time, review conduct anterior to the grant of jurisdiction?

2. A useful starting point is the dictum of Fullagar J. in Fisher v. Hebburn Ltd. (1960) 105 CLR 188 at 194:
   
   

"There can be no doubt that the general rule is that an amending

enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement."

1. In my view, to grant these extensions of time, so as to allow applications for mandamus to be brought, is not to give s. 39B of the Judiciary Act 1903 (Cth) or O. 54A of the Federal Court Rules 1979 (Cth) retrospective operation. Section 39B does not create a new right or obligation or impair an existing right or obligation. It does not, in the language of Fullagar J., attach new legal consequences to events occurring before its commencement. What it does is to identify the original jurisdiction of this Court as including any matter in which a writ of mandamus is sought against an officer of the Commonwealth. In so doing it confers on this Court a jurisdiction which already exists in the High Court by virtue of s. 38 par. (e) of the Judiciary Act 1903 (Cth).

2. Counsel for the prosecutors submitted that s. 39B was merely procedural and that therefore, in accordance with a line of authority which includes Maxwell v. Murphy (1957) 96 CLR 261, there was no presumption against retrospective operation. In that case Fullagar J. commented at p 286:
   
   

"A consideration of the cases generally cited in this connexion has led me to think that the distinction is probably best stated by

saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. In the former

class of case there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is

no such presumption: on the contrary, the presumption is that the

enactment applies in all proceedings commenced after it became law, and it may be right to construe it as applying even in proceedings

commenced before it became law."

1. His Honour acknowledged that the distinction did not represent "a logical dichotomy" but pointed out that "it has been accepted and applied again and again".

2. Thus, while there are difficulties in the way of describing s. 39B as procedural, in the ordinary sense of that word, the section does, I think, deal with the pursuit of remedies rather than the creation of substantive rights. It presupposes that there is conduct in respect of which mandamus or prohibition or an injunction would ordinarily lie and confers jurisdiction upon the Federal Court to deal with such conduct.

3. In my view, once s. 39B came into operation it empowered the Federal Court to entertain an application of the sort there mentioned, even in respect of conduct anterior to the grant of jurisdiction.

4. Of course O. 54A, r. 26 imposes a time limitation on an application for a writ of mandamus to a tribunal but that is no bar in the circumstances of the present cases. There will be in each case an order in terms of par. 1 of the application for extension of time and an order for leave to file an application for a writ of mandamus in terms of the form of application annexed to the affidavit of Gavin David Crocket filed in the proceedings.

ORDER

Orders accordingly.