Friis v Friis
[2000] QCA 62
•10 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Friis v Friis & Ors [2000] QCA 62 PARTIES: GLENDA CAROLYN FRIIS
(as Legal Personal Representative of the Estate of
MERVYN JOHN FRIIS)
(applicant)
v
PHYLLIS ISABEL FRIIS
(first respondent)
JAMES JOSEPH and LYNETTE CAROL FRIIS
(second and third respondents)FILE NO/S: Appeal No 10772 of 1999
Fam CA Appeal No NA16 of 1999
Fam CA No BR 10743 of 1997DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Family Court at Brisbane
DELIVERED ON: 10 March 2000 DELIVERED AT: Brisbane HEARING DATE: 21 February 2000 JUDGES: McPherson JA, Williams and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.ORDER: Applications adjourned to a date to be fixed.
Costs reserved.CATCHWORDS: FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – JURISDICTION – APPEALS – application seeking order under Federal Courts (State Jurisdiction) Act 1999 (Qld) that certain appeals presently pending in Full Court of the Family Court be “treated as a proceeding” in Court of Appeal of the Supreme Court of Queensland – whether source of jurisdiction for judgment at first instance of Family Court was State cross-vesting legislation – effect of Re: Wakim – effect of definition of “ineffective judgment” in s 4 Federal Courts (State Jurisdiction) Act – consideration of “accrued jurisdiction” of federal courts – limits of “accrued jurisdiction” of Family Court in relation to judgment at first instance to be properly determined by Family Court – effect of such determination on operation of s 4
CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – whether Family Court has accrued jurisdiction by virtue of s 75 and s 76 of the Commonwealth Constitution – extent and basis of Family Court’s jurisdiction to be determined by that court
Constitution of the Commonwealth of Australia, s 75, s 76, s 109
Family Court Rules (Cth), O 31A
Family Law Act 1975 (Cth), s 4(1) s 40(3), s 78(8), s 85, s 94
Judiciary Act 1903 (Cth), s 78B
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(4)
Acts Interpretation Act 1954 (Qld), s 9(1)(a)
Federal Courts (State Jurisdiction) Act 1999 (Qld) s 3, s 4, s 6, s 7(2), s 8, s 11Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 4(2)
DMW v CGW (1982) 151 CLR 491, considered
Fencott v Muller (1983) 152 CLR 570, considered
Maiden v Maiden (1909) 7 CLR 727, applied
McLaughlan v Fosbury (1904) 1 CLR 546, applied
Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, considered
Smith v Smith (1986) 161 CLR 217, considered
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 251, distinguished
Re Wakim; ex parte McNally (1999) 73 ALJR 839, followedCOUNSEL: Mr S Keim for the applicant
Mr T North for the first respondent
Mr J D Houston for the second and third respondentsSOLICITORS: John Davies & Co for the applicant
Groom & Lavers Solicitors for the first respondent
Murdochs Solicitors for the second and third respondents
McPHERSON JA: The facts and the relevant statutory provisions are set out in the reasons of Williams J which I have had the advantage of reading. While agreeing with much of what his Honour says there, I consider that the question whether there should now be an order treating the subsisting appeal to the Full Court of the Family Court as an appeal in this Court depends in the end primarily on the meaning and effect of the order made by the Full Court on 8 November 1999.
In the proceedings before Jerrard J in the Family Court in application No Br 10743 of 1997, his Honour gave judgment for the applicant as personal representative of Mervyn John Friis against his wife (or widow, as she became soon after the proceedings were instituted) Phyllis Isobel Friis as respondent, and also against the other two respondents JJ and LC Friis, who were beneficiaries under a deed of gift executed by the wife on 18 December 1996. His Honour made final declarations with respect to ownership and possession of personal property in dispute and ordered that specified real property be transferred. The reasons for judgment delivered by his Honour disclose that he made those declarations or orders at least partly in consequence of findings of undue influence or unconscionable conduct, or both, on the part of the respondents or some of them.
At the time judgment was given, power to make those declarations or orders in the Family Court arose, or were then believed to arise, from one or more, or a combination, of several actual or possible jurisdictional sources. They were: (1) the express jurisdiction of the Family Court with respect to a "matrimonial cause" as defined in s 4(1) of the Family Law Act 1975 (Cth), read in this instance in conjunction with s 78(8) of that Act; (2) the accrued jurisdiction of that Court in the "matter" arising under s 75 and s 76 of the Constitution: see Fencott v Muller (1983) 152 CLR 570; and (3) the jurisdiction invested by s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld). As appears from his reasons for judgment, Jerrard J considered himself to be exercising jurisdiction to hear and determine the proceedings before him in the exercise of the jurisdiction invested under (3) above by s 4(2) of the State Act of 1987, as to which consequential orders were made under O 31A of Family Court Rules by May J on 16 June 1998.
The accrued jurisdiction referred to in (2) above merits closer attention As the law was then understood to be, his Honour had no occasion to advert to it in his reasons, and he did not do so. At that time s 4(2) of the State Cross-Vesting Act of 1987 appeared to contain a complete grant of State jurisdiction to the Family Court. It comes as a surprise to one who is not familiar with the family law system to discover that it is still not authoritatively settled whether or not the Family Court has accrued jurisdiction by virtue of s 75 and s 76 of the Constitution. The point was left open by the High Court in Smith v Smith (1986) 161 CLR 217, and there are conflicting decisions or judicial statements on the subject in the Family Court. See Dickey, Family Law, 3rd ed (1997), at 102-104. No doubt at the time he wrote, the author was correct in saying that the question was largely academic because of the various State Cross-vesting Acts; but that is now no longer the case.
If the Family Court does have accrued jurisdiction, then Jerrard J almost certainly was invested with power to make the declarations and orders which he did in No Br 10743 of 1997. If so, it would make little or no difference that he conceived himself to be acting in the exercise of the jurisdiction derived from the State Act in (3) above, rather than from s 75 and s 76 of the Constitution in (2) above. That is because no more is required to sustain a judgment than a valid and sufficient jurisdiction to hear and determine a matter irrespective of the particular source of that jurisdiction. In McLaughlan v Fosbury (1904) 1 CLR 546, 549, Griffith CJ said that the powers of a judge "are not in fact or in law impaired if he erroneously attributes the source of a particular power to the wrong statute". See also Maiden v Maiden (1909) 7 CLR 727, 734-735. The application of this principle to the proceedings in No Br 10743 of 1997 is not, in my opinion, displaced by the fact that the exercise of accrued jurisdiction has been held to be discretionary: Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 251. Here there were no competing proceedings with respect to the same "justiciable controversy", and there are, as far as I can see, no identifiable considerations that would have led his Honour, or would lead the Full Court, to refuse to hear and determine the matter in the exercise of the accrued jurisdiction. There is a presumption in favour of the jurisdiction of a superior court, and the Family Court is regarded as a superior court for the purpose of this rule: see DMW v CGW (1982) 151 CLR 491, 505.
The decision of the High Court in Re Wakim, ex p McNally (1999) 73 ALJR 839 and the other cases heard in conjunction with it has now expunged the jurisdiction of the Family Court under the State Act referred to in (3) above. The decision in Re Wakim was delivered on 17 June 1999, which was shortly after judgment was given by Jerrard J on 30 April 1999 and after an appeal had been instituted in the Family Court on 27 May 1999 against his Honour's decision. In consequence of the decision in Re Wakim, the parties then applied to and on 5 November 1999 obtained from the Full Court of the Family Court an order incorporating a declaration that the Family Court has "no jurisdiction to hear so much of the appeal as relates to a State matter". That order was expressed to be by consent and "pursuant to s 11 of the provisions of the Federal Courts (State Jurisdiction) Act 1999 (Qld)". If, as was accepted in Re Wakim, a State lacks power under the Constitution to invest jurisdiction in a federal court, s 11 of the State Act of 1999 would not in law be capable of achieving that result. In fact, s 11 of the State Act of 1999 nowhere invests or affects to invest in, or to take away, Family Court jurisdiction to make an order concerning the extent of that jurisdiction. I would, therefore, be disposed to regard the words last quoted as having no operative effect, and to regard the order made on 8 November 1999 as a declaration by the Family Court simply that that Court has "no jurisdiction to hear and determine so much of the appeal as relates to a State matter".
Approached in that way, however, a further difficulty has a potential to arise about the ambit of the order made on 8 November 1999. Considered in isolation from the State Act of 1999, the Family Court, including the Full Court, may very well continue to have jurisdiction in or in relation to what may be generally described as a State matter. That is so because the accrued jurisdiction, if any, referred to in (2) above is, on one view, a form of jurisdiction in respect of a State matter the exercise of which is not denied to the Family Court by the decision in Re Wakim. On the contrary, the High Court in Re Wakim specifically recognised that, on the authority of Fencott v Muller (1983) 152 CLR 570, jurisdiction in that form continues to subsist in the Federal Court. In respect of a matter like this, there may therefore be concurrent jurisdiction in both the Family Court and the State Supreme Court; cf Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 251. It follows that to the extent that the Full Court of the Family Court continues under s 94 of the Family Law Act to have jurisdiction to entertain an appeal against the decision and orders of Jerrard J, there is nothing in State legislation that is capable of taking that jurisdiction away from the Family Court. Apart from other possible difficulties, a provision of state legislation which sought to do so would be inconsistent with s 94 of the Family Law Act conferring a right or appeal, and would be vulnerable to the overriding operation of s 109 of the Constitution if not also to challenge under s 75 and s 76 of the Constitution itself.
Section 11 of the State Act of 1999 does not, at any rate in express terms, purport to directly affect the appellate jurisdiction of the Family Court under s 94 of the Family Court Act, although it might conceivably have that result indirectly. It enables a "proceeding" to "be treated" on application under s 11(2) "as a proceeding in the Supreme Court": see s 11(2). Once an order is made under s 11(2), it becomes a proceeding for all purposes (including, presumably, an appeal), and is deemed to have been brought in the Supreme Court: s 11(3)(b). The application here is to have those parts of the appeal to the Full Court of the Family Court as to which it declared there was no jurisdiction treated as an appeal to this Court. To attract such treatment, there must have been "a relevant order", which is an expression defined in s 11(1). In each of the three paragraphs that go to make up that definition an order of that kind is predicated on there having been a "proceeding relating to a State matter". The word "proceeding" in s 11(1) of the State Act of 1999 is not exhaustively defined in that Act, but by s 3 "includes" an initiating application. The expression "State matter" is defined in para (c) in s 3 of the State Act of 1999 as a matter "in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court". A relevant State Act is in turn defined to include the State Cross-Vesting Act of 1987. On going back to it, one finds in s 4(2) a purported investment of State jurisdiction expressed in the broadest terms. It provides (or before Re Wakim provided) that "the Family Court has and may exercise original and appellate jurisdiction with respect to State matters"; and "State matter" is defined by para (a) in s 3(1) of that Act as meaning "a matter in which a State Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State". That description is, of course, apt to include the whole of the Supreme Court's general or "Westminster" and Lord Chancellor's jurisdiction including its original and appellate jurisdiction to grant relief in transactions involving undue influence or unconscionable conduct.
I confess to having some residual doubts about the ambit of "relevant order" as defined in s 11(1) of the State Act of 1999. The expression "proceeding relating to a State matter", which is an element in it, is very wide, and is perhaps capable of including the whole of the "matter" that is the subject of the appeal in the Family Court, which, it may be assumed, would include accrued jurisdiction to hear and determine on appeal the issues of undue influence and unconscionability arising under State law. The argument against such a wide interpretation of that phrase in s 11(1) is that the definition of "State matter" in s 3 of the State Act of 1999 has the effect of confining "relevant order" to a matter in respect of which a State Act purported to confer jurisdiction on a federal court. As such, it is not apt to include the accrued jurisdiction invested by the operation of s 76 of the Constitution. This conclusion requires the word "proceeding relating to" to be read as describing something considerably less than the whole "matter" involved in that appeal, and as referring to the jurisdiction which s 4(2) of the State Cross‑vesting Act of 1987 purported to invest in the Family Court. The word "proceeding" is capable of being used in that limited sense: see Fencott v Muller (1983) 152 CLR 570, 603, and this appears to be the sense in which it is used in the definition of "relevant order" in s 11(1) of the State Act of 1999.
On balance, I consider this to be the correct interpretation of s 11, not least because it avoids any constitutional question that might otherwise arise about the validity of s 11 of the State Act of 1999. See Acts Interpretation Act 1954 (Qld), s 9(1)(a). For that reason I do not consider that the application now before us requires the giving of the notices contemplated by s 78B of the Judiciary Act 1903 (Cth): cf Re Finlayson, ex p Finlayson (1997) 72 ALJR 73. The question at issue here is really one of interpretation of the declaration contained in the order made in the Full Court of the Family Court on 8 November 1999. It was that the Family Court has "no jurisdiction to hear and determine so much of the appeal as relates to a State matter", which, on the view I have taken, is to be interpreted as referring only to that aspect of the proceedings in that Court with respect to which jurisdiction purported to be conferred by s 4(2) of the State Cross-vesting Act of 1987, not being jurisdiction that accrued as part of the "matter" which may have been invested under s 75 or s 76 of the Constitution. Perhaps it was to emphasise this that the consent order included the words "pursuant to s 11 of the provisions of" the State Act of 1999, and that those words were simply inserted in an inappropriate form or place in that order or declaration. They were intended as a qualification of "State matter". Approached in that way, however, the order or declaration does little more than state a legal truism. Ever since the decision in Re Wakim, it has been clear that the State Act is incapable of conferring jurisdiction on a federal court. Saying that the Family Court has no jurisdiction to hear so much of the appeal as relates to a State matter simply states the legal effect of that decision of the High Court.
The problem here is to ascertain the precise content of that "proceeding" or aspect of the matter with respect to which the Family Court has declared it has no jurisdiction. Assuming that accrued jurisdiction in the "matter" of the appeal remains with the Family Court, it is not at all easy to say what fragment or remnant of the claims or issues on appeal in No Br 10743 of 1997 enures to this Court and is covered by the description "so much of the appeal as relates to the State matter". On the face of it, questions of undue influence and unconscionability would appear to be completely absorbed in or comprehended by the accrued jurisdiction of the Family Court, and so are not capable of forming part of the appeal that "relates to the State matter" in the sense in which that expression is used in s 11(1) of the State Act of 1999 and in the order and declaration made on 8 November 1999. Until we know precisely what, if any, issues should be "treated as" a proceeding by way of appeal in this Court, it would be wrong to act under s 11(2) of the State Act by making an order of the kind that is sought in the application to this Court. The Judges of this Court who would ultimately hear the appeal might very well conclude that it involved no question at all relating to a State matter as defined in s 11(1) of the State Act of 1999; but that the whole of "justiciable controversy" which is the subject-matter of the appeal remains within the jurisdiction of the Family Court invested by a combination of the express jurisdiction referred to in (1) above and the accrued jurisdiction referred to in (2) above. If that were to happen, treating the appeal as a proceeding in this Court would achieve nothing but the infliction of unnecessary costs on the parties to it.
This Court has no power to determine the jurisdiction of the Family Court or, if it has, it is a power that should, in the interests of judicial comity, not be exercised at this stage of proceedings before the Family Court has itself determined the extent of its jurisdiction in the appeal. In a sense, of course, it has, in the consent order made on 8 November 1999, already determined that it has no jurisdiction as regards some, but not a precisely specified, part of that appeal An order made by consent cannot alter the jurisdiction of the Family Court by depriving it of any accrued jurisdiction that may in law be vested in that Court. The Supreme Court, however, has no power to set aside that order, which can only be done by the High Court or by the Family Court itself. See DMW v CGW (1982) 151 CLR 491, 504. It is only if there is no accrued jurisdiction in the Family Court that this Court could safely assume that it has jurisdiction in the matter, which it is for the Family Court rather than for this Court to declare in the first place. Within the limits of its jurisdiction, decisions of a federal court like the Family Court have been said to be "paramount": DMW v CGW (1982) 151 CLR 491, 503-504.
If in fact and in law there is an area of jurisdiction which, in consequence of the decision in Re Wakim, is vested solely in the Supreme Court, the only rational way of ensuring that the whole appeal in No Br 10743 is heard and determined as a single matter might be to make an order under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) transferring the whole of that proceeding or matter to this Court. Under s 40(3) of the Family Law Act, the matrimonial jurisdiction of the Supreme Court was terminated on or after 1 June 1976; but power to re-invest it in a particular proceeding is conferred by s 5(4) of the Commonwealth Cross‑Vesting Act of 1987, which is not touched by the decision in Re Wakim. It is not for us to dictate to the Family Court, or to be thought to be attempting to do so, and Mr North, who appeared before us on behalf of the respondent who is the appellant in the Family Court, did not have instructions from his client to consent to any such order being made in the Family Court. It is, however, essential to the parties, who have no interest in the niceties of jurisdiction, that the appeal should if possible be dealt with as an integrated whole in one court, rather than piecemeal in two. The first question is, however, to determine whether there are any and what identifiable issues in the appeal that are not capable of being heard and determined in the Family Court but only in this Court. At the moment it is not possible to say what, if any, they are. In those circumstances, and until that question is elucidated in the Family Court or in some other way, the appropriate course is to adjourn the applications in this Court to a date to be fixed, with costs reserved. I would make an order in that form.
WILLIAMS J: The Court has before it two applications each seeking an order pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (Qld) (“the Act”) that certain proceedings presently pending in the Full Court of the Family Court be “treated as a proceeding” in the Court of Appeal.
It is necessary to set out some background facts in order to place the applications in context. M J Friis (“the husband”) and P I Friis (“the wife”) were married on 16 December 1950, and the matrimonial relationship ceased with the death of the husband on 29 April 1997. G C Friis, a child of that marriage, is the legal personal representative of the husband. After the wife inherited three farming blocks in the Pittsworth area the husband and wife carried on a farming operation thereon from late 1952 until 1995. In about 1968 the husband purchased a further paddock using monies he inherited and it became part of the farm.
J J and L C Friis were distant relatives of the husband. In about 1979 they acquired a farming block near Helidon. There was what may be described as regular and constant contact between the parties by the late 1980s.
It is sufficient for present purposes to say that from about October 1996 the wife attended solicitors accompanied by J J and L C Friis on a number of occasions. At that stage the wife was recovering from the amputation of both legs because of a medical condition. That contact with the solicitors culminated in the wife, J J Friis, and L C Friis executing a deed in December 1996 in terms of which the wife gifted her interest in two of the farming lots she had inherited to J J and L C Friis on certain terms and conditions including a provision that she might reside rent free in a house on the property for as long as she wished.
Shortly before his death the husband commenced proceedings in the Family Court seeking orders on a variety of bases which would have the effect of setting aside the disposition in favour of J J and L C Friis. On his death those proceedings were continued by G C Friis as his legal personal representative.
In broad terms in the Family Court proceedings the applicant husband sought orders under s 85 of the Family Law Act 1975 (Cth) setting aside the dispositions of property in favour of J J and L C Friis and also orders against the wife by way of property settlement. Further, in those proceedings the wife also sought orders against J J and L C Friis under s 85 of the Family Law Act. Finally both the husband and wife sought orders against J J and L C Friis under State law alleging undue influence and/or unconscionable conduct in respect of the disposition in question.
By order of Justice May of 16 June 1998 it was determined that both the Family Law Act claims and the State law claims should be heard in the Family Court. The matters went to trial before Justice Jerrard and he made a series of orders on 30 April 1999.
It is necessary to quote some passages from the reasons for judgment of Justice Jerrard (the applicant referred to therein is G C Friis as legal personal representative of the husband):
“Subsequent to the statements of claim in the cross-vested jurisdiction of this Court being filed by the wife and applicant respectively on 8 and 11 May 1998, her Honour May J made orders on 16 June 1998 pursuant to O 31A of the Family Law Rules. That Order, in r 4, requires the party who applies to the Family Court in reliance on a cross-vesting law to include particulars of the relevant State law on which the party intends to rely and to seek a determination and a direction from the Court as “soon as possible” as to whether the proceedings should be transferred under the Cross-vesting Act. I understand that all parties were in agreement before her Honour that it was appropriate that this Court exercise the cross-vested jurisdiction given to it pursuant to s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), which particular statute was identified by the wife in her pleading as the State statute upon which she relied, and the jurisdiction she asked this Court to exercise was the jurisdiction of the Supreme Court of Queensland: “for conversion and for the equitable principles of unconscionable conduct and undue influence.”
The application, if a little inelegant, identifies clearly enough the jurisdiction sought to be exercised, and no submissions were ever made to the contrary. The application of the applicant filed 11 May 1998 did not conform with O 31 r 4(1)(a) in that it did not particularise the State or Territory law upon which the party intended to rely, but the declaration and orders for sale sought by the applicant and described herein rely on the exercise of a like jurisdiction to that invoked by the wife.
…There are, accordingly, a variety and number of proceedings in the various applications being heard in this matter in this Court. The matter of jurisdiction was raised by myself shortly after the proceedings before me commenced, and all parties wish to avoid the extra and unnecessary expense involved in conducting proceedings in two different Courts. I understood it was agreed that a substantial part of the factual matrix, if not the whole, was common to all applications, and common legal issues arose. …
…I have mentioned this at some length because one of the applications before me is the wife’s cross-vested statement of claim against the second and third respondents. That action is one which she is entitled to bring quite independently of the proceedings by the applicant against herself or those other respondents. … As the statement of claim reveals, it is entirely an action between the wife as plaintiff and the second and third respondents in these proceedings as defendants in that cross-vested action. I think it follows that in that latter action the jurisdiction of this court to make orders as between the wife and the second and third respondents with respect to the farm is in no way subject to the constraints imposed by s 9(8)(b)(i) and (ii) in the various applications in which the applicant as executrix of the deceased is a party.”
The learned trial judge was satisfied that the wife had not established the undue influence pleaded by her. However, he found in favour of the wife on the ground that it would be unconscionable for the disponees to retain the gift made to them. In consequence the learned trial judge said: “I consider I should find for the wife in her cross-vested action, and order that these transfers be set aside.” It is not necessary to set out for present purposes details of the other orders ultimately made.
By Notice of Appeal filed in the Family Court on 27 May 1999 J J and L C Friis appealed to the Full Court of the Family Court against two of the orders of Justice Jerrard; in particular that appeal challenged the findings on which the order setting aside the disposition was based.
On 31 May 1999 G C Friis filed a Notice of Appeal in the Family Court appealing against a number of the orders made by Justice Jerrard. An Amended Note was then filed on 16 June. Again that appeal challenged orders and findings made in the purported exercise of cross-vested jurisdiction.
Insofar as the Family Court relied on the cross-vesting legislation that involved vesting a federal court with State jurisdiction. Before the appeals were heard the High Court on 17 June 1999 handed down its decision in Re Wakim; ex parte McNally (1999) 73 ALJR 839. Therein it was held that legislation purporting to confer State jurisdiction on federal courts was invalid. To the extent that it purported to provide for the conferring of such jurisdiction the cross-vesting legislation was invalid. It followed that the decision of Justice Jerrard was made without jurisdiction if the relevant source of the jurisdiction he exercised was the cross-vesting legislation.
The problems thereby created were addressed by the Act. In broad practical terms the solution therein provided that:
(i) where there is a judgment of a Federal court involving a State matter that judgment is declared to be a judgment of the State court;
(ii) where a matter is pending in a Federal court and it involves a State matter the State court may order that the proceeding be treated as a proceeding in that State court.
Where there has been an actual judgment by a federal court which involves a State matter, s 4 of the Act is pivotal; relevantly it provides:
“(1)A reference in this Act to an “ineffective judgment” is a reference to a judgment of a federal court in a State matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act.
(2)If –
…
(b)A Full Court of the Family Court of Australia has purported to affirm, reverse or vary an ineffective judgment,
a reference in this Act to the ineffective judgment is a reference to the ineffective judgment in the form in which, and to the extent to which, it purports or purported to have effect from time to time.”
It will be necessary for present purposes to analyse that section in greater detail, but that task can best be left until after the significance of other sections of the Act are noted. For ease of discussion I will assume that the decision of Justice Jerrard was an ineffective judgment.
Section 6 of the Act provides that the rights and liabilities of all parties are declared to have been the same as if the ineffective judgment “had been a valid judgment of the Supreme Court” of Queensland. No order of this Court appears to be necessary in order to achieve that result. By operation of the section of the statute (in the assumed circumstances) the judgment of Justice Jerrard would be deemed to be a valid judgment of this court.
The parties to the proceeding in the Family Court giving rise to the ineffective judgment are then given the right by s 7(2) of the Act “to appeal against that judgment”. That would of necessity be an appeal to the Court of Appeal of the Supreme Court of Queensland.
Further, s 8 would appear to have the consequence that the Notices of Appeal filed in the Family Court were deemed to be Notices of Appeal to the Court of Appeal of the Supreme Court of Queensland. On that analysis of the Act, where there was no doubt that the judgment in question was an “ineffective judgment”, and a Notice of Appeal had been filed in the appropriate federal court, the appeal would proceed in the Court of Appeal of this Court without the necessity of any formal order to that effect.
If the Act is construed and applied in that way then s 11 would primarily apply to the situation where there was a proceeding pending in a federal court involving a State matter and the Act was called into play before a judgment was delivered. In those circumstances the federal court could make a “relevant order” within s 11(1) of the Act. For present purposes it is sufficient to note that a “relevant order” includes a “declaration by a federal court … that it has no jurisdiction to hear and determine a proceeding relating to a State matter”.
It may well be that s 11 also covers the situation where, as here, at the material time the proceeding in the federal court is an appeal from an “ineffective judgment”. It is not necessary to finally determine that question for present purposes.
However, the Full Court of the Family Court made a declaration in those terms in the present case and that has given rise to the applications in this court by G C Friis and by J J and L C Friis pursuant to s 11(2) of the Act, which provides:
“A person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order.”
Where there was no doubt but that the judgment at first instance was an “ineffective judgment” within s 4 of the Act it probably does not matter whether the appeal gets to the Court of Appeal of the Supreme Court of Queensland through the combination of sections 6, 7 and 8 of the Act outlined above, or by way of declaration and order made pursuant to s 11. If there was no doubt but that the judgment of Justice Jerrard was an “ineffective judgment” for purposes of the Act there would be no good reason for this court refusing to make such orders as may be necessary under s 11 to allow it to proceed with the hearing of the appeal.
However, there is a major problem which arises in a matter such as this which appears not to have been addressed by the Act. The point was alluded to in argument but the critical issues were not fully addressed in submissions to this court. Nor was it raised with the Full Court of the Family Court. The problem arises because, as recognised by the decision in Fencott v Muller (1983) 152 CLR 570, a federal court has “accrued jurisdiction”. Such accrued jurisdiction was vital to the actual decision in the Wakim appeals.
The position is well summarised by McHugh J in Wakim at 856 where he said:
“Whether an issue, whose resolution depends upon State law or the common law, is within the accrued jurisdiction of the Federal Court depends upon whether it is part of a “matter” arising under s 75 or s 76 of the Constitution. To be part of that “matter” it must be part of a single controversy. And as the Court said in Fencott v Muller (at 608) that “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. As the Court went on to say (608) in that case, “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter”.”
To similar effect are the passages in the judgment of Gummow and Hayne JJ at 869-70.
The material before this court indicates that when the Full Court of the Family Court made its declaration pursuant to s 11 of the Act it did so without hearing any argument; the matter was disposed of by consent. The declaration is in these terms: “That by consent pursuant to the provisions of s 11 of the Federal Courts (State Jurisdiction) Act 1999 (Qld), the Court has no jurisdiction to hear and determine so much of the appeal as relates to a State matter.” Unfortunately that declaration is not really of much assistance. It does not define the extent to which the proceeding in the Family Court involved a State matter. That is not something which this court can determine because it involves in essence making a finding as to the limit of jurisdiction of the Family Court with respect to the proceeding. That, of necessity, must also involve a finding as to the limit of that court’s “accrued jurisdiction” in the particular matter.
The issue is more acute because of the definition of “ineffective judgment” in the Act. A State Act cannot arrogate to a State court federal jurisdiction without the support of federal legislation. If, for example, the proceeding in a federal court involved a “matter” which resulted in the federal court acquiring jurisdiction under State law or the common law as part of its accrued jurisdiction, the Act would not apply so as to render the judgment in question an “ineffective judgment” and in consequence a judgment of the State court.
It is clear in the instant case that Justice Jerrard thought that he was exercising jurisdiction pursuant to the Queensland cross-vesting legislation; in consequence he purported to exercise State jurisdiction. But that does not dispose of the problem. If in law and in fact he had jurisdiction to deal with the whole matter because it came within the accrued jurisdiction of the court as defined in Fencott v Muller it is irrelevant that he did not expressly base his reasoning on that ground or even that he mistakenly believed that he did not have such jurisdiction. If a court has jurisdiction to deal with a matter and make the orders it did, then it does not matter that the judge made an error in stating the source of the power to so act.
Given that the parties constructed the proceeding as they did in the Family Court it is for the Family Court in the first instance to determine the limits of the “accrued jurisdiction” if any. In the circumstances it is not appropriate for this court to embark upon a consideration of the jurisdictional limits on the Family Court at the time of the hearing before Justice Jerrard.
For those reasons the Full Court of the Family Court should determine in the first instance the limit of the accrued jurisdiction, if any. If a party considered that the Full Court erred in making its decision in that regard then the only recourse would be to seek to appeal to the High Court. If the Full Court of the Family Court determined that, notwithstanding the language used in the extracts from the judgment quoted above, Justice Jerrard had jurisdiction pursuant to the accrued jurisdiction of the court to hear and determine all issues raised in the proceedings, then his judgment would not be “ineffective”; the Act would not apply and the appeals would proceed in the Full Court of the Family Court. If the Full Court of the Family Court determined that Justice Jerrard had no jurisdiction to deal with all the issues raised in the absence of the cross-vesting provisions then it would be necessary for that court to define the State matters which fell outside the jurisdiction of the Family Court. It is the orders with respect to those matters which would be caught by the Act.
Some of the issues determined by Justice Jerrard were clearly within the jurisdiction of the Family Court pursuant to the Federal statute conferring jurisdiction on it. To the extent that such issues were involved the Act could not deem the judgment with respect thereto a judgment of this court. It would therefore seem that if part of the judgment was invalid because it was dependent upon cross-vested jurisdiction, the appeals, insofar as they involved family law matters, would prima facie be within the jurisdiction of the Full Court of the Family Court, and insofar as they involved State matters they would be within the jurisdiction of this court.
To avoid the necessity of there being two separate appeal hearings it would be theoretically possible for the Family Court to cross-vest that part of the appeal involving family law matters to the Court of Appeal of the Supreme Court of Queensland pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Each of the applicants in this Court indicated an interest in seeking such an order if that was the situation.
It follows that at this stage this court cannot make an order pursuant to s 11 of the Act. The Family Court should resolve the accrued jurisdiction issue and if there was a State matter which was not validly within the jurisdiction of that court at the material time then that should be expressly defined at the time of making the declaration pursuant to s 11.
The best course would appear to be to adjourn each of the present applications to a date to be fixed. Costs should be reserved.
WILSON J: I have had the advantage of reading the reasons for judgment of McPherson JA and Williams J, with which I am in substantial agreement. I agree with the orders proposed by Their Honours.
In consequence of the decision in Re Wakim; ex parte McNally (1999) 73 ALJR 839 the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) could not give the Family Court jurisdiction it otherwise lacked to exercise State judicial power. A judgment of the Family Court on a “matter” invalidly cross-vested to it would be an “ineffective judgment” within s 4 of the Federal Courts (State Jurisdiction) Act 1999 (Qld). I shall refer to the latter as the “1999 State Act.”
Such a judgment would be deemed to be a judgment of the relevant State court (in this case, the Supreme Court of Queensland), and an appeal could be brought as of right to the Court of Appeal of the Supreme Court of Queensland: see sections 6 and 7 of the 1999 State Act.
However, if the Family Court could have dealt with the “matter” in its accrued jurisdiction, it is not to the point that an order cross-vesting it to that court was invalidly made. It was always within the jurisdiction of the Family Court, and a judgment of that court in relation to it would not be an “ineffective judgment.” Rights of appeal would be in accordance with the usual provisions governing appeals in the Family Court.
Section 11 of the 1999 State Act is concerned with pending proceedings, including a pending appeal if it is “a proceeding in relation to a State matter,” i.e. is one in which the Family Court does not have jurisdiction (whether express or accrued). It provides a mechanism for continuing such proceedings in the State court.
The extent of the jurisdiction of the Family Court (in particular, whether a certain “matter” is within its accrued jurisdiction) should be determined in the first instance by that court.
It is not possible to tell from the order of the Full Court of the Family Court of 8 November 1999 what were the “matters” in which it considered it lacked jurisdiction.
I agree that the application to this Court should be adjourned so that the parties may approach the Full Court of the Family Court for clarification of its determination on the jurisdictional issue.
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