HBSY Pty Ltd ACN 151 894 049 v Lewis & Anor
[2024] HCATrans 34
[2024] HCATrans 034
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S106 of 2023
B e t w e e n -
HBSY PTY LTD ACN 151 894 049
Plaintiff
and
GEOFFREY LEWIS
First Defendant
THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF
Second Defendants
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 MAY 2024, AT 10.00 AM
Copyright in the High Court of Australia
MR M.K. CONDON, SC: May it please your Honours, I appear with MR D.K. SMITH for the plaintiff. (instructed by Roberts & Partners Lawyers)
MR P.J. MENADUE: May it please your Honours, I appear for the first defendant. (instructed by Shields Lawyers)
MR S.P. DONAGHUE, KC Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MS C. ERNST for the Commonwealth Attorney‑General intervening. (instructed by Australian Government Solicitor)
GAGELER CJ: Thank you, Mr Solicitor. There is a submitting appearance for the second defendant. Yes, Mr Condon.
MR CONDON: Can we attend to the formalities. If I can take your Honours to the court book, and I need to read the affidavit of Christiaan Roberts. Your Honours will find it is item number 9 – Christiaan Barclay ‑ ‑ ‑
GAGELER CJ: We can take it as read, unless there is some objection.
MR CONDON: I am grateful to your Honours. I do not understand there to be any objection, your Honour.
GAGELER CJ: We will take that affidavit as read. Is there anything else as by way of formality?
MR CONDON: I need to tend to the statement of agreed facts, may it please your Honours, which your Honours will find at page 54 of that volume. That is material before the Court, with respect. Can I take your Honours then to the matters of law which arise on the case. Your Honours would appreciate that the Federal Court was being asked to exercise jurisdiction under section 24(1)(c) of the Federal Court of Australia Act.
In our submission, what their Honours were asked to do was a case which arose from the exercise of federal jurisdiction in a case which was provided by another Act, namely section 7(5) of the Jurisdiction of Courts (Cross‑vesting) Act. In our submission, the legislation – that is, the cross‑vesting legislation – is in essence remedial and was intended to eliminate, firstly, what the Full Court described as dry, arid debates about jurisdiction, and secondly – as the Minister put it in his second reading speech – the need to determine whether any particular matter was within or without federal or State jurisdiction.
The section – that is, section 7(5) – incorporates language well‑defined by reference to section 76(ii) of the Constitution, and the drafters must have adopted that phrase with an eye to that body of law. Their Honours in the Full Court accepted as such at judgment paragraph 28. We submit that the position can be more accurately described as follows: section 7(5) transplanted the law settled in this area of discourse as the sole criterion for directing when appeals should, to adopt the language of a heading of this section, be instituted and heard.
The nub of the plaintiff’s case is simply this: the words mean what they say, and there is no scope for reading into section 7(5) any qualification to a clear, to a familiar and to a self‑contained test. To put it otherwise, what my learned friend Mr Menadue’s client must demonstrate is that the words he contends for were admitted by inadvertence by both the drafters and by the Parliament. The implied imitation which found favour with the Full Court involves an inquiry quite different to the characterisation of the matter being raised in any particular appeal. What the Schedule identifies, of course, is a series of Acts which historically – that is, before 1987 – vested appellate jurisdiction either wholly or to a great degree in the Full Bench of the Federal Court.
The purpose of section 7(5) was to ensure that there was no encroachment upon that well‑established position, standing as at 1987. The test which found favour with the Full Bench of the Federal Court, and which the defendant contends before your Honours, substitutes a test which does not seem on its face to bear any relevance to the 13 Acts in the Schedule. That is, the source of the jurisdiction which came to be exercised by the primary judge. That test involves a significant departure, not only from the natural and ordinary meaning of the words, but from issues of coherency – the coherency of the inquiry. On this test, the Schedule to the Act is irrelevant. A Full Court has jurisdiction or not by dint of section 7(5) and must exercise it subject to what may be regarded as an anomaly which is the source of the jurisdiction, which the primary judge came to exercise.
On the test which found favour with the Full Court, the appellate court would need to determine the question by reference to matters which: (a), are not directly related to the subject matter of the identified legislation – I repeat, the source of a jurisdiction – and secondly, they will not have been considered by the court at first instance. In that regard, we submit to your Honours that it is quite common for primary judges not to have to consider the source of a jurisdiction which they have been asked to exercise at first instance. Of course, all of this is contrary to the expectation expressed by the Attorney that the scheme would do away with any need for a court to determine whether jurisdiction was enlivened by State or by federal jurisdiction.
What the first defendant must demonstrate to your Honours is that the Parliament plainly intended the statute to have the meaning that would be achieved by the insertion of the words which found favour with the Full Bench of the Federal Court. Can we take your Honours to one of the few cases we wish to just emphasise: Taylor, joint bundle 4 ‑ ‑ ‑
GAGELER CJ: Can you give us the citation, please?
MR CONDON: If your Honours will just excuse me one second. It is 253 CLR 531.
GORDON J: This is tab 36.
MR CONDON: I am grateful to your Honour. I wish to take your Honours to page 548 of the report, at paragraph 38 and following. This is a judgment of the Chief Justice French, Justices Crennan and Bell. At 38:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.
We interpolate that cannot be the case here:
It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
We respectfully submit we fall into that second position. Their Honours then refer it in 39 to Lord Diplock’s statement of reasons in the case called Inco. Can I just pass over that and to the concluding words of 39, about point 5, on page 549.
EDELMAN J: These are all very well‑known principles of statutory interpretation, but they do not suggest any warrant for performing a literal exercise and then considering purpose and determining whether the purpose requires too much change in the literal words; it is all one exercise.
MR CONDON: We accept that. We are bound to accept that, Justice Edelman, but the purpose of our taking the Court to these passages is to remind the Court, with great respect, that it is no easy thing to add additional words in. Can I just take your Honours to paragraph 40 ‑ ‑ ‑
EDELMAN J: Strictly, additional words are never added in. The words are either there explicitly or implicitly, or they are not.
MR CONDON: Yes. We accept that as well.
EDELMAN J: But your submission is just that they are not there.
MR CONDON: They are not there, and there is not sufficient warrant, with great respect, to imply those words. Indeed, for the reasons which the Solicitor‑General advances to this Court, which we respectfully join with, to do otherwise would be to work a fundamental reworking of the position prior to 1987. With great respect, I do not propose to repeat what the Solicitor‑General has put better than we could.
The whole purpose of this was to avoid a position where section 4 of a Cross‑vesting Act would confer upon State courts of appeal appellate jurisdiction arising under federal Acts and the purpose of section 7(5) was procedurally to drive those appeals in relation to the identified Acts to the Full Bench of the Federal Court, which, for the reasons the Solicitor has given, had historically enjoyed – when we say “exclusive”, it was not exclusive entirely to the exclusion of the State courts, but in some cases were exclusive, in some cases were not, but it was designed to maintain that position. That is the simple submission we make to your Honours. It is not much more complex than that, with great respect.
I do not need to take your Honours any further in Taylor. We would make the submission that the text, the context and the consequences – as I have indicated to Justice Edelman, in particular – do not support any such imputation. The consequences of the Full Court’s reasoning would include the following. First, many appeals that plainly rise under the identified Acts in the Schedule would not be touched by section 7(5), not by dint of their subject matter but because how the primary judge came to exercise federal jurisdiction to begin with.
Secondly – at the risk of repetition – this is particularly so because where, in 1987, Supreme Courts had original jurisdiction to hear matters arising under those Acts, either pursuant to section 39(2) or express conferral, appellate jurisdiction remained with the Full Court of the Federal Court. The construction preferred by the defendant – or advanced by the first defendant – would mean that, contrary to the conclusion articulated by the Minister in his second reading speech, appeals in matters under the listed Acts would, in many cases – perhaps a majority – be heard by State courts of appeal, thus diluting this specialist jurisdiction of the Full Court of the Federal Court.
We submit that, contrary to what fell from all this in the Full Court, sections 7(3) and 7(5) do not involve any partial repeal of section 39 of the Judiciary Act. Can I just take your Honours, briefly, to the second case I wish to take your Honours to, which is Justice Leeming’s judgment in 2 Elizabeth Bay, joint bundle volume 5, open at page 1565.
GAGELER CJ: The citation, please?
MR CONDON: The citation, Chief Justice, is (2014) 88 NSWLR 488.
GORDON J: Tab 40.
MR CONDON: Thank you, Justice Gordon. At paragraph 90, at point 2 on the page, his Honour said:
A statutory prohibition in the form “A plaintiff must not commence legal proceedings unless [Condition] is first satisfied” may bear a variety of different legal meanings. It may, on its proper construction, be directed to the courts and tribunals whose jurisdiction might be invoked . . . The statute may operate in those circumstances to deny jurisdiction to the court or tribunal. If that be the true construction of the statute, then the court or tribunal will have no choice but to dismiss the proceedings for want of jurisdiction.
Then we respectfully emphasise these words:
However, such a construction will only be accepted where the legislative will is clearly expressed . . . It is inappropriate to construe a provision expressed as a prohibition upon a litigant as a limitation upon jurisdiction –
Again, we emphasise:
without clear words or necessary intendment or (to use the language in Australasian Memory Pty Ltd v Brien . . . “[c]ogent reasons”.
Then we particularly emphasise, with great respect, as prescient, what fell from his Honour at paragraph 91:
Another possibility is that the statute may be construed as requiring the court or tribunal to deal with the proceedings commenced in contravention of it in a particular way. If so, then rather than the statute denying jurisdiction, the statute will impose an obligation upon the court or tribunal as to the way in which its jurisdiction is to be exercised.
GLEESON J: But in this case, on your interpretation, there would be a court that would lose jurisdiction.
MR CONDON: With respect, no, because the State Full Court still has jurisdiction, but the statutory direction in a matter which deals with – one goes to the heading, the institution and determination of appeals – we are talking, on the heading of the section, of a procedural matter rather than substantive law – directs that the appeal must be heard by a particular court, and if it lands in the Full Bench of a State Supreme Court, the section tells the State Supreme Court what it should do. But it assumes the continuing existence of that jurisdiction. Can I just take your Honour to the Act itself. If your Honours go to joint book volume 2, the Act as it relevantly stands now commences at page 970.
GAGELER CJ: What Act is this?
MR CONDON: This is the Cross‑vesting Act, I do apologise.
GAGELER CJ: Thank you.
BEECH-JONES J: Is this tab 8?
MR CONDON: Thank you.
BEECH-JONES J: Do you mean tab 8, the current version?
MR CONDON: And if one goes to subsection (7) on page 989 ‑ ‑ ‑
GAGELER CJ: Subsection (7) of what?
MR CONDON: Section 7(7), Chief Justice:
Where:
(a)the Full Court of a Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and
(b)before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which subsection (5) applies;
the Court shall –
Then there is a carve‑out:
unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding –
et cetera, et cetera. The very word “transfer” assumes a valid enlivening of jurisdiction. The Full Court – that is, the Court of Appeal of New South Wales – identifies the appearance of a problem within subsection (5) territory. It may do one of two things. It may, if the circumstances require, proceed to hear the matter – it has jurisdiction, plainly. Or, alternatively, it may transfer – and we rely upon that word, “transfer” – the proceeding to the appropriate Federal Court.
GLEESON J: This is the point you are making at paragraph 9 of your oral outline?
MR CONDON: Yes, your Honour.
GORDON J: So, the points are these, are they? Section 4 of the Cross‑vesting Act is dealing with jurisdiction.
MR CONDON: It invests jurisdiction, Justice Gordon, yes.
GORDON J: Section 7 is not dealing with jurisdiction, it neither supplements or detracts from jurisdiction.
MR CONDON: Indeed.
GORDON J: What it does is provide a channelling function for particular types of appeals to the Federal Court in respect of the Acts listed in the Schedule. It does not distract from the jurisdiction of the State courts, as I understand your argument, confirmed by (7) and (8), because even, if by omission or otherwise, the State Supreme Courts go on to decide it, the matter is not wrong.
MR CONDON: Indeed, so subsection (8) expressly provides that if a Full Court has determined a matter in error, or by error, it is still a valid judgment of that court.
GORDON J: Does that mean that one does not look at the source of jurisdiction when you are dealing with the section 7 questions?
MR CONDON: Indeed. On our construction of the section, the only test is whether there is an appearance – so, a court does not need to determine the matter, but there is an appearance that the matter arises under one of the scheduled Acts, and that is sufficient to enliven the requirement that it not be heard by a particular Act or be referred to a particular court.
GORDON J: Do you accept what the Commonwealth put, at paragraph 15 of their submissions, that you have to read in, at least interpret the phrase “proceeding by way of an appeal” in subsection (3) as “in a matter involving federal jurisdiction”?
MR CONDON: We do.
GORDON J: Otherwise, you would pick up too many appeals.
MR CONDON: Indeed. And, in essence, as the Commonwealth has it, and we accept, without some words of limitation in subsection (3), a Commonwealth Act would be directing a Full Court of a State as to what appeals it could or could not hear. So, there has to be some limitation. But we also join with the Commonwealth in submitting to your Honours that the limitation is a matter arising under federal jurisdiction, as apposed to a matter arising in the Cross-vested Act, for the reasons that the Commonwealth has advanced.
I think I put to your Honours, not only going back to Justice Gleeson’s question of us, subsections (7) and (8), because the hearing of the section, which is the institution and hearing of appeals, which does not speak naturally to an issue of jurisdiction. Can I just go back briefly to what fell from his Honour Justice Leeming in 2 Elizabeth Bay. His Honour has drawn a distinction between statutes which abnegate jurisdiction and statutes which direct how a court is to exercise jurisdiction. If one goes to paragraph 91:
Another possibility is that the statute may be construed as requiring the court or tribunal to deal with the proceedings commenced in contravention of it in a particular way. If so, then rather than the statute denying jurisdiction, the statute will impose an obligation upon the court or tribunal as to the way in which its jurisdiction is to be exercised.
We would gratefully endorse his Honour’s example, a reference to section 7 of the Cross‑vesting Act at the second half of paragraph 91 of that passage.
I think then, with respect, your Honours, all we need submit to your Honours is that we endorse the analysis undertaken by our learned friends on behalf of the Attorney and that the evident purpose of the section was to ensure that appeals which might be heard under the cross‑vested Act by a State Court of Appeal were not heard in relation to the 13 Acts which, before 1987, had been largely within the purview of the Full Bench of the Federal Court in relation to its specialised jurisdiction.
And the evident purpose of this section was to channel – to use the language Justice Gordon put to me – appeals of those kinds to a court which had, before 1987, and which was intended to have after 1987, specious jurisdiction in relation to those statutes.
Those are the submissions on behalf of the plaintiff.
GAGELER CJ: Thank you, Mr Condon. Mr Solicitor.
MR DONAGHUE: May it please the Court. Your Honours, the Commonwealth submits that, contrary to the Full Federal Court’s reasoning, section 7(5) of the Cross‑vesting Act should be given its literal meaning such that it applies to any appeal arising under one of the Acts listed in the Schedule, using the familiar and well‑established meaning of the words “matter arising under”, irrespective of whether the judgment under appeal was made in the exercise of a jurisdiction sourced in the Cross‑vesting Act.
The Full Court reasoned that contextual factors to which I will come justified the departing from that literal meaning of the settled words so as to construe section 7(3) and then, in a consequential fashion, section 7(5), as applying only to appeals where the decision at first instance in the State Supreme Court was made in the exercise of cross‑vested jurisdiction. And you see that holding most clearly – your Honours do not need to go to it now – at paragraph 41 of the Full Court’s reasons, on page 445 of the core appeal book, but also in 49. Their Honours refer to appeals:
from a decision made in the exercise of cross‑vested jurisdiction.
Our submission, in common with the plaintiff, is that is to read the provision in a way that departs radically from its text, but also – and this is the main matter I am going to seek to develop orally – in a way that has the consequence that section 7(5) completely fails to achieve the objective that Parliament sought to achieve by the enactment of that provision. To explain ‑ ‑ ‑
GLEESON J: Mr Donaghue, I would be assisted if you could explain how, on that interpretation, subsection (6) would operate.
MR DONAGHUE: In relation to special federal matters?
GLEESON J: No, subsection (6) of section ‑ ‑ ‑
MR DONAGHUE: Subsection (6) of section 7, dealing with the Family Court?
GLEESON J: Yes. In other words, what, if any, operation does that have, on the Full Federal Court’s interpretation?
MR DONAGHUE: Your Honour, can I come back to that? I confess I have not focused on the State Family Court provision, so I will return to that, if I may.
Your Honours, to explain why we submit that, on the Full Federal Court’s interpretation, section 7(5) would fail to achieve its purpose, it is necessary to address – and I will do this as efficiently as I can – the distribution of both original and appellate jurisdiction as between the Federal Court and State and Territory Supreme Courts immediately prior to the enactment of the Cross‑vesting Act – because section 7(5) is seeking to preserve that position.
In inviting your Honours to construe section 7(5) against that context, we apprehend that we are not inviting your Honours to do anything at all radical. That is the approach in CIC v Bankstown 187 CLR 384 at 408, where four Justices emphasised that:
the modern approach to statutory interpretation . . . uses “context” in its widest sense to include such things as the existing state of the law and the mischief which . . . the statute was intended to remedy.
That is what we are doing. I propose, structurally, to start with the distribution of original appellate jurisdiction at the time the cross‑vesting scheme was enacted and the way it was intended to work specifically in relation to appellate jurisdiction, then to turn to identify the areas in the Full Court’s reasoning, and then briefly to address over‑inclusivity and the jurisdiction that the Federal Court was exercising.
Can I start, then, with the original conception of the Federal Court. Going back in time, the Federal Court had existed for about decade at the time the cross‑vesting scheme was enacted, and throughout that decade it had extremely limited original jurisdiction. As your Honours will no doubt recall, section 19 of the Federal Court Act says that its original jurisdiction is such as is vested in it by other laws made by the Parliament, and there were, at that time, very few such laws. There was original jurisdiction in relation to industrial relations, some trade practices matters, bankruptcy, federal administrative law – that was about it.
This history is traced – and I will not take your Honours to it – in Cowen and Zines’s Federal Jurisdiction in Australia, which we have given you in volume 6, tab 70, relevantly, at pages 157 to 159. Importantly, there was no equivalent to the present 39B(1A)(c), which for the last 25 years or so has given that Court original jurisdiction in all matters arising under a law made by the Commonwealth Parliament. So, that general jurisdiction did not exist. In contrast, though, with that very limited original jurisdiction, the Federal Court had significant appellate jurisdiction, which reflected the fact that at the time the Court was created it was envisaged primarily as a court that would hear appeals from Territory Supreme Courts and that would hear appeals from State Supreme Courts in matters of particular federal concern.
You can see that conception of the Federal Court quite clearly identified in the second reading speech given by the Attorney‑General, with respect to the Federal Court of Australia Bill. If your Honours could go to that, it is in volume 6, tab 67, and when your Honours have it could you turn to the third page, which is page 2111. Starting, if you would, in the left‑hand column, at about point 2, there is paragraph that says:
The Government believes that only where there are special policy or perhaps historical reasons for doing so should original federal jurisdiction be vested in a federal court.
Then, going down that paragraph to about point 7 or point 8:
The Court now proposed will not, as would previous Bills to establish a Superior Court . . . perform judicial functions that can better be performed by State courts or create jurisdictional problems of a kind that might delight constitutional lawyers but only add to the hazards of litigation for the parties concerned. The present Bill therefore differs from previous Bills . . . in that the original jurisdiction that is to be exercised by the proposed Federal Court of Australia will be limited initially to that now exercised by the Industrial Court and the Bankruptcy Court.
The Industrial Court as a historical anomaly had some of the administrative jurisdiction at that time – administrative law jurisdiction. By contrast to that limited original jurisdiction, you can see few lines down:
secondly in that the court will serve as a court of appeal from State courts in certain matters of special federal jurisdiction as well as in Territory matters . . . It would not enter any field of original jurisdiction now exercised by State courts.
Then if your Honours go further down that page, I will not read it, but there is a reference near the bottom to clause 24, which became section 24, concerning the appellate jurisdiction of the court, which includes appeals from State courts in some cases. Then over the page, on page 2112, near the bottom of the right‑hand column, it is said:
In those special matters of federal jurisdiction in which an appeal will lie from the State courts to the Federal Court of Australia, federal jurisdiction will not be vested in the full courts of the State Supreme Courts to hear appeals. The effect of these arrangements will be that, subject to the provision for appeals –
to this Court:
the Federal Court of Australia will be the authoritative exponent of the law in the special federal matters and will thus ensure uniformity of interpretation of the law in important areas –
That was the concept of the Federal Court at the time it was created. Where, in a decade later, the Commonwealth and State Parliaments came to enact the Cross‑vesting Acts, it was recognised that those Acts might destroy that exclusive role of the Federal Court in relation to those special matters.
GAGELER CJ: Mr Solicitor, at the bottom of page 2111, there is a reference to:
Separate legislation will be introduced to provide for appeals –
Was there a single consequential provisions Act that brought all that together? Do you recall?
MR DONAGHUE: In the Federal Court?
GAGELER CJ: Yes, consequential upon the enactment of the Federal Court Act.
MR DONAGHUE: I do not know the answer to that, we can have a look at that. I am not sure if it was a single Act or – I suspect it was not because the way section 24 of the Federal Court Act works, as long as original jurisdiction is being vested in the Federal Court there will already be the appeal, and then there is in 24(1)(c), which I will come to later, an existing provision that provides for appeals to the Full Federal Court from a State Court exercising federal jurisdiction where provision is made for that appeal in any other Act. They did not all need to be bought.
GAGELER CJ: No, of course, but there was legislation that needed to link up with section 24(1)(c) and that is being alluded to, I think, at the bottom of the page, but it does not matter.
MR DONAGHUE: In those various matters, yes, indeed. No, I appreciate that, and I will look into whether there was a single consequential provisions Bill.
GAGELER CJ: Thank you.
BEECH‑JONES J: Or was it just each particular bit of legislation? So, it is separate, individual pieces of legislation or amendments; one in relation to bankruptcy and one in relation to industrial relations.
MR DONAGHUE: Yes. As I am going to take your Honours to in a few minutes, one did see specific provisions in all of those Acts. I understood the Chief Justice to be asking me whether those specific provisions all come from one consequential amending Bill, which I suspect that they may, but I would have to check.
GAGELER CJ: I suspect so, too.
MR DONAGHUE: The Cross‑vesting Act stood to potentially destroy that structure I have just described, and the reason for that you see, if you could turn to the Cross‑vesting Act, which is in volume 2, tab 8 – your Honours have been to it briefly already – in section 4, headed “Additional jurisdiction of certain courts”. I am inviting your Honours to look at section 4(1), the structure of which was to confer jurisdiction on State Supreme Courts in cases where, one:
the Federal Court . . . has jurisdiction with respect to a civil matter –
And two, in subsection (b):
the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction –
So, the Federal Court has it, and the State Supreme Court does not. In those two circumstances, then, (c):
in the case of the Supreme Court of a State . . . that court is invested with federal jurisdiction with respect to that matter –
Those two conditions are, on analysis, quite an apt way of describing a situation where the Federal Court has exclusive jurisdiction. It has the jurisdiction, so you tick (a), and the State court does not have the jurisdiction, so you tick (b). The way that section 4(1) was drafted, all of the exclusive appellate jurisdiction of the Federal Court was vested in State Supreme Courts by section 4(1).
How then – sorry, before I go further, that is also important because it means that if the State court already has the jurisdiction, as I am going to show your Honours it did have – State courts did have jurisdiction under all of the scheduled Acts – then, by definition, they were not exercising cross‑vested jurisdiction. That is the essential error of the Full Court, because the Full Court says 7(5) applies only when you are exercising cross‑vested jurisdiction, and section 4 does not invest jurisdiction if it existed already.
BEECH-JONES J: Mr Solicitor, this may be a trivial question, but I was wondering, as an example, what was a type of case that section 4(1) gave, at first instance, a State Supreme Court jurisdiction that they did not otherwise have? That is, they did not get under, say, 39(2).
MR DONAGHUE: At first instance?
BEECH-JONES J: Yes. If you want to take it on board.
MR DONAGHUE: No, no. So, an example would be jurisdiction that the Federal Court had in respect of Commonwealth administrative law.
BEECH-JONES J: Administrative Decisions (Judicial Review) Act.
MR DONAGHUE: Yes, that kind of jurisdiction. Industrial cases would be another example. Section 7(5), staying in the Act, which was a response to that consequence of section 7(4). It recognised that section 4(1) was giving State courts appellate jurisdiction that they did not otherwise have because it had previously been exclusive to the Federal Court, and it sought to preserve the distribution of appeals in fact within the exercise of jurisdiction so as to ensure that the Federal Court did not lose the exclusive appellate role it had previously possessed.
That purpose of 7(5) – and I will come to the text of 7(5) in more detail, shortly – really could not have been made clearer in the extrinsic material. If I may, I will take your Honours briefly to both the second reading speech and the revised declaratory memorandum for the Cross‑vesting Bill. The second reading speech is volume 6, tab 65. When your Honours have it, if you could turn to page 2556, in the right‑hand column.
Perhaps, before I come to the main passage I want to read to your Honours, could I observe by way of aside that if you read the paragraph that begins at the bottom of the left‑hand column, it now seems cheerfully ambitious, but it does demonstrate that the idea was that courts would not need to worry about the source of jurisdiction they were exercising.
Of course, on the Full Federal Court’s construction, the source of jurisdiction that is being exercised – your Honours are being invited to construe the provision in a way that makes the source of jurisdiction being exercised the determinant of consideration. It seems unlikely, in a scheme designed to make those questions irrelevant, that that would be intended to be the determinative criteria. I take your Honours to this page to ask you to look halfway down the right‑hand column:
The special role of the Federal Court is also recognised in relation to appeal matters which presently lie within the exclusive appellate jurisdiction of the Federal Court. The Schedule to the Bill lists certain Acts such as the Bankruptcy Act 1966 and the Commonwealth Electoral Act 1919. Appeals in matters under the listed Acts will remain within the exclusive appellate jurisdiction of the full Federal Court.
There is a discussion in committee that I will not take you to, but we have given it to you behind the next tab, 66, where the Attorney‑General says he has been speaking to the Chief Justice of the Federal Court who is very anxious about losing that jurisdiction. Then, in the revised explanatory memorandum, which is volume 6, tab 64, you see at the top of the second page in paragraph 8:
Provision is made in the Bill (clauses 3, 6 and 7) to recognise the special role of the Federal Court in matters in which it now has, apart from the jurisdiction of the High Court, exclusive original or appellate jurisdiction.
Section 7 is, plainly, there dealing with the appellate part of that statement. Then the most relevant part, on page 4, under the heading “Clause 7”. Your Honours can see there a recognition of the problem that I averted to, arising from section 4:
But for clause 7, the full cross‑vesting of federal and State jurisdiction between the relevant courts at the appellate levels as well as at first instance could, for example, result in an appeal being taken from a single judge of the State Supreme Court to the Full Federal Court in matters that, apart from the cross‑vesting legislation, would have been entirely outside the jurisdiction of the Federal Court.
That is the problem addressed by section 7(3) of the Act. Similarly, it could result in appeals between different federal courts, and then it says, five lines up:
Clause 7 is designed to prevent the cross‑vesting from giving rise to any such appeals except where a matter in an appeal from a single judge of a State Supreme Court is a matter arising under a Commonwealth Act specified in the Schedule to the Commonwealth Bill. In such a case, the whole appeal will lie only to the Full Federal Court. The scheduled Acts are Acts . . . under which the Full Federal Court now has exclusive appellate jurisdiction.
So, clause 7 was expressly intending to preserve that state of affairs. It is a state of affairs which the Full Court’s construction would cause section 7 to fail to meet, because if section 7(5) only channels appeals where the court is exercising cross-vested jurisdiction, it will not channel appeals in any case where the State court has original jurisdiction under a scheduled Act. And as I am about to show your Honours, the State courts had original jurisdiction under every one of the scheduled Acts. So, because it had original jurisdiction under every one of the scheduled Acts, on the Full Court’s construction, 7(5) does not direct those appeals to the Federal Court. They could go to the State Supreme Courts, and section 7(5) misses its target.
To try to make that point as quickly and painlessly as possible, we have attached two tables to our oral outline of submissions. Could I ask your Honours to turn to Table 1, which is the table in landscape format. What we have done in this table is that we have chosen a sample of the scheduled Acts. There are 13, we have chosen five. If it would assist your Honours, we can give you a table like this for all 13 but, in our submission, the point holds for all of them, so we are just trying to reduce the amount of paper we are giving your Honours. But if it would assist the Court, we are happy to do that.
The table shows, in its main left-hand column, the position in relation to both original and appellate jurisdiction prior to the commencement of the Cross-vesting Act and then, in the right-hand column, the present position. So, if your Honours could focus first on the left-hand position, going through the scheduled Acts. So, starting with the Bankruptcy Act, you can see that original jurisdiction in bankruptcy – “jurisdiction in bankruptcy” is the key phrase – was conferred by section 27 not just on the Federal Court but also on the Supreme Courts in (b), (c), et cetera.
I am going to stick with original jurisdiction first and then come back to appellate jurisdiction. In section 383, which was injunctions of various kinds under the Commonwealth Electoral Act, you can see that jurisdiction was given to “a prescribed court”, which could include, as you can see in subsection (8):
A prescribed court (being a court of a State) is invested with federal jurisdiction . . . with respect to all matters arising under this section –
In the Copyright Act, over the page, if you go to section 131A:
The jurisdiction of the Supreme Court of a State or Territory in an action under this Part [Part V – Remedies for Infringements of Copyright] shall be exercised by a single Judge of the Court.
The Copyright Act seems to be slightly anomalous in the scheme of the 13 Acts in that usually those Acts themselves contained an investment of jurisdiction in the State Court. The Copyright Act, in 131A, appears to assume the existence of that jurisdiction without conferring it. We think that the position is that those courts – State Supreme Courts – exercise that jurisdiction under 39(2). So, that was, unlike all of the others, it was a 39(2) jurisdiction. There is, perhaps, an argument that 131A is, itself, a conferral of jurisdiction, but ‑ ‑ ‑
GAGELER CJ: Is there not something in the Acts Interpretation Act?
MR DONAGHUE: There is – 15C of the Acts Interpretation Act, which says where a proceeding contemplates that proceedings will be instituted in a particular court, then that is a conferral of jurisdiction. So, on that basis, one could say 131A is, itself, an investment of jurisdiction. But I think I am right in saying that there are some cases that have proceeded on the basis that it is 39(2) jurisdiction. I do not think it matters, your Honours. The point I am seeking to make is that the State Supreme Court was exercising original jurisdiction under the Copyright Act.
The same is true under the Patents Act – again, which you can see from section 146 – “matters arising under this Act” could be brought in a prescribed court, which was defined, as you can see in the note we have added, to include the Supreme Courts of a State. Finally, the Petroleum Retail Marketing Franchise Act, the same point.
So, under all of them, you have original jurisdiction being exercised under a scheduled Act by a State and Territory Supreme Court – not cross‑vested jurisdiction – and, under all of them, going back to the top of the table, staying in the left‑hand column – and I will not read them all out to your Honours, but you can see in all of them, the appeal lies to the Federal Court of Australia – section 38 of the Bankruptcy Act, section 131B of the Copyright Act, section 148 of the Patents Act, section 26(4) of the Petroleum Retail Marketing Franchise Act.
Sometimes the Act expressly said it lies to the Federal Court and no other court; sometimes it just said it lies to the Federal Court. But in all of those cases, you see the exclusive Federal Court appellate jurisdiction that section 7(5) was intended to preserve. So, that table is, in our submission, sufficient to illustrate that at the time of the enactment of the Cross‑vesting Act, there was nothing at all unusual about an appeal lying from a Supreme Court of a State or Territory exercising original jurisdiction and an appeal lying to the Federal Court. That was, indeed, part of the main reason that the Federal Court had been created, to exercise jurisdiction in cases of that kind, and section 7(5) was seeking to preserve it.
The position has been obscured, we think – and this may explain the Full Court’s error – by the fact that in the period since, a lot of the original jurisdiction that used to be exercised by State and Territory Supreme Courts under these Acts has been moved to the Federal Court. So, appeals across the hierarchies in a way that used to be common have become much less common, and one sees, instead, original jurisdiction under the scheduled Act being exercised in the Federal Court and then the appeal lying to the Full Federal Court in the ordinary way. I will not detain your Honours in developing that point, but that is why we have included the right‑hand column on the present wording and, in my submission, the right‑hand column makes it good.
There is an analysis of the scheme that is consistent with the submissions I have been making to your Honours in a judgment of the Full Federal Court in NEC Information Systems Australia v Iveson (1992) 36 FCR 258, a joint judgment of Chief Justice Black and Justices Lockhart and Gummow. Your Honours have it in volume 5, tab 54. The actual holding in the case is not relevant, I am taking your Honours to it only for the discussion of the scheme. It is a joint judgment of the court, and the discussion of the scheme, relevantly for present purposes, commences at the bottom of 264, where, having listed a number of points in paragraphs numbered (a) to (d), the court said:
In addition to those general considerations, for an appreciation of the operation of the provisions of the Act . . . some further propositions are important.
And there are then four further propositions that are advanced, the third and the fourth being the relevant ones. So, over the page on 265, about halfway down the page, right in the middle, after the citation of George Hudson, you see:
Thirdly, there is the class of matters in which original jurisdiction is conferred by particular statutes on this Court or the Family Court of Australia, and concurrently there is an investment of jurisdiction in State and Territorial courts, but subject to a conferral of appellate jurisdiction upon this Court or the family Court . . . which jurisdiction is exclusive –
And then some examples are given, all coming from the scheduled Acts:
In other matters in this category (eg Commonwealth Electoral Act . . . original jurisdiction is conferred only upon the Supreme Courts of the States . . . but an appeal lies to this Court.
And then there is a reference to 7(3). Then, about point 8:
Appeals in matters arising under a statute specified in the Schedule to the Act are unaffected by the general command in the subsection –
that is, 7(3), that appeals are to:
be instituted only in the Full Court or Court of Appeal of that Supreme Court.
So, the scheduled Acts stand outside the generalised command in 7(3) that seeks to keep State matters with State original jurisdiction matters within State courts. So, that is the Full Court’s third consideration. The fourth, which is the most relevant:
Fourthly, the existing exclusive appellate jurisdiction of this Court in matters in the third class we have described is undiminished and, indeed, it is enhanced by s 7(5) and (7) of the Act. Thus, where the Full Court of a State Supreme Court has commended to hear, but has not determined, an appeal –
has to be transferred to the Federal Court:
unless “the interests of justice” –
otherwise require. That is the effect of section 7(7):
Again then, there is apparent the manifest object that in some classes of matter the exclusive jurisdiction of this Court should continue because, in the view of the Parliament, there is particular utility in maintaining that position.
So, in my submission, there cannot really be any doubt about the purpose that section 5 was intended to achieve. The problem, in our submission, is that while that purpose is achieved by a literal construction of the provision – albeit, we accept, that the literal construction goes slightly wider than was the position in terms of the exclusive appellate jurisdiction of the Federal Court before commencement, and I will come to that; it is slightly wider – but the alternative proffered by the Full Court is radically underinclusive. It does not capture any of the appeals that were the target of the provision.
The Full Court, if you could turn to the court book, your Honours, and go to page 438, was aware that what it was doing was departing quite radically from the text. So, you see an acknowledgement in paragraph 22 that, in its terms, section 7 makes:
none of its provisions is expressed to apply only to cases decided in the additional jurisdiction conferred on courts by the cross-vesting legislation –
In paragraph 25 there is an acknowledgement that 7(3) and (5) together:
appear to cover the universe of possible appeals from a single judge of a State supreme court.
Paragraphs 26 and 27 acknowledge that:
The phrase “matter arising under” an Act or a law of the Commonwealth . . . has been part of the discourse of federal jurisdiction for a long time.
The cases concerning the meaning of that phrase are addressed in 26 and 27, and then in 28 the Full Court acknowledged that:
The drafters . . . must be taken to have been familiar with the case law . . . and to have chosen the phrase “matters arising under an Act” with an eye to –
it. And, therefore, later in 28:
Absent some firm indication to the contrary, therefore, an appeal . . . should be understood to involve determination of “a matter arising under an Act specified in the Schedule” if an issue agitated in the appeal depends on the operation or effect . . . of one of the Acts.
And then their Honours frankly acknowledge, in the last line of 28:
the present appeal clearly involves a “matter arising under” the Bankruptcy Act.
So, in its terms, the provision applies. Their Honours concluded that, notwithstanding all of that, the provision had a different meaning, because they thought that the context required or justified a different conclusion. The context to which they referred, which their Honours acknowledged in paragraph 38 involved:
a departure from the ordinary meaning of the text –
is the context you see discussed from paragraph 30 through to 34, particularly. There is a reference to the general purpose of the Cross‑vesting Act in paragraph 30, and “problems” arising from overlapping jurisdiction. That, we submit, is part of the very issue that section 7(5) was directed to. That is not a factor that warrants construing section 7(5) in the way that the Full Court did.
Paragraphs 31 through to 33 are directed principally to the relevance of section 7(3) of the Act. I do not think I am doing an injustice to the Full Court to say that the essence of the reasoning is that their Honours say, if you read 7(3) literally, it applies to matters that had nothing to do with federal jurisdiction. The Commonwealth Parliament cannot have intended to regulate the flow of appeals through State courts in non‑federal matters, and therefore section 3 has to be read down. We are with the Full Court that far.
But that does not take one very far, in our submission, because 7(3) might be expressed to operate more widely than federal jurisdiction, but 7(5) is about matters arising under a Commonwealth Act. By definition, it could only ever have applied to matters that involved the exercise of federal jurisdiction, so one does not need an equivalent reading down in relation to 7(5). Then, and ultimately, in our submission, critically to the Full Court’s reasoning, one has paragraph 33:
Read literally, therefore, s 7(3) does work that is already done by s 39(2) –
of the Judiciary Act, and:
It is otiose to that extent.
That suggests that decision of a single judge cannot be read literally, and their Honours say:
The class of decisions in which 7(3) actually has work to do is decisions in cases where the supreme court exercises the jurisdiction conferred by s 4 –
In our submission, that reasoning is erroneous, and it is erroneous because 7(3) is not doing the work that is done by 39(2). Section 7(3) of the Act – which is tab 2, volume 8, if your Honours do not any longer have it before you – is a provision that assumes that jurisdiction has been conferred on the State Supreme Court by some other law, be it 39(2), a particular provision of one of the scheduled Acts, or section 4 itself, and it then channels – to use your Honour Justice Gordon’s word – those appeals in particular directions.
So, section 7(3) channels to the State appellate structure if they do not involve matters arising under one of the scheduled Acts, and section 5 channels them to the federal appellate structure if they do. But in neither case is the provision in itself conferring jurisdiction on the State or Territory court and, because they are doing different things – 39(2) is conferring jurisdiction and 7(3) is channelling – there is no reason to try to construe 7(3) to avoid overlap with 39(2). It is not otiose. It is doing something different. Yet, it was the need to read 7(3) down so as not to overlap with 39(2) that caused the critical narrowing which you see reflected in the last sentence of 33.
EDELMAN J: Why is there a need to read 7(3) down? In almost every case that is outside the scheduled Acts, 39(2) would operate in the same way as 7(3), would it not?
MR DONAGHUE: Well, 39(2) would confer the jurisdiction and there would not be any other appellate pathway, so you would just proceed under 39(2). Your Honour, I think, anticipates a point that I was about to make. So, there is only a need to read 7(3) down insofar as I would not suggest that section 77 of the Constitution empowers the Commonwealth Parliament to say to a State court in a matter that has nothing to do with federal jurisdiction, this is how your appeals should run. On its face, the literal text of 7(3) looks like that is what it is doing.
GORDON J: I thought that you accepted that it needed to have the words “in a matter involving federal jurisdiction” either added or at least read “proceeding by way of appeal” in relation to those matters.
MR DONAGHUE: In federal jurisdiction. I would prefer your Honours to put it as it cannot validly operate except in relation to those matters, rather than read it down, for this reason. At the same time as the Commonwealth enacted the Cross‑vesting Act, the State Parliaments all enacted a Cross‑vesting Act. They enacted section 7(3) in materially identical terms. One has section 7(3) operating as a State law, one has it operating as a Commonwealth law, it says the same thing in both contexts.
The evident intention of that scheme is to remove the need to decide which one is doing the heavy lifting, or is doing the work. One or other of the provisions will channel the appeals in a particular way, and if one reads 7(3) down, then that means the identical text in the Commonwealth Act would mean something different to the identical text in the State law, whereas if one just accepts the Commonwealth law cannot validly operate beyond the cases of federal jurisdiction, you achieve the same objective: the Commonwealth law is regulating federal jurisdiction, consistently with Rizeq it can do that, States cannot. Once one moves out of federal jurisdiction, the State law is having the same operation, and so that ‑ ‑ ‑
BEECH‑JONES J: Just to be clear, we are talking about two readings‑down. There is one that you are content with, but as a question of power, which is confined to matters involving federal jurisdiction, but the other reading‑down is the one that you hotly contest, which is the reading‑down to only matters in which jurisdiction is conferred by the Cross‑vesting Act.
MR DONAGHUE: Precisely, your Honour, and the only reason for that second reading‑down is to avoid overlap ‑ ‑ ‑
EDELMAN J: I thought your submission with 7(3) is that to ensure it is consistent in its interpretation with the State equivalents, one does not read it down, but just disapplies it to the extent it might not have constitutional operation.
BEECH‑JONES J: Yes.
MR DONAGHUE: That is my submission, I think my shorter answer to your Honour Justice Beech‑Jones probably obscured that, but what your Honour Justice Edelman puts to me is what I endeavoured to put to Justice Gordon a minute ago, and that is my submission. It has a consistent meaning as a matter of interpretation, but it does not validly apply at Commonwealth level beyond federal jurisdiction. So that when the Full Court says, as it says in the last few sentences of 31:
It is not the role of the Commonwealth Parliament to dictate the flow of appeals through State courts in non‑federal matters, and s 7(3) is unlikely to have been intended to do so. To avoid trespassing on the States’ ability to legislate for their own court systems –
the words have to be read down. We respectfully disagree with that, because while it might be true as a matter of Commonwealth law, once one recognises there are identical State provisions, that criticism loses force.
GORDON J: Sorry to go back to this, Mr Solicitor. I had picked up the reading‑down language – it may not matter – from paragraph 15 of your submissions. I am to read that submission now the way you have put it orally?
MR DONAGHUE: Yes, please, your Honour. I think, with further thought, we are putting it more precisely.
GORDON J: And that is because of the last sentence in paragraph 15?
MR DONAGHUE: Yes.
GORDON J: Thank you.
MR DONAGHUE: Much the same submission that I have just made about 7(3) in terms of not being otiose applies to the proposition that 7(5) involves a partial repeal of section 39. It does not because, again, it is dealing with a different thing. So, 39 is conferring the jurisdiction; 7(5) is presupposing a conferral of jurisdiction on the State court from some other source, and it is channelling the court to which that jurisdiction runs.
As my learned friend for the plaintiff has already developed, the proposition that there is no implied repeal of jurisdiction is supported by section 7(7) and 7(8) of the scheme, because it is very hard to understand, if through inadvertence, a State court has exercised jurisdiction in a matter arising under a scheduled Act, how Parliament could say that decision is nevertheless effective, if the court did not have the jurisdiction to make it.
GAGELER CJ: Mr Solicitor, there is a big question that I need to ask you that arises from that proposition that section 7(5) presupposes a conferral of jurisdiction. It is a submission I fully understand. I just wonder whether it is intentioned with something that appears to be common ground in the case, and that is that for purposes of section 24(1)(c) of the Federal Court of Australia Act, section 7(5) is providing for an appeal. Can I just go back a step and put that question in context, by looking at your very helpful table ‑ ‑ ‑
MR DONAGHUE: Of course.
GAGELER CJ: ‑ ‑ ‑ and looking the first entry which is the Bankruptcy Act – so, the day before the cross‑vesting legislation came into force, the Supreme Court of New South Wales had jurisdiction in bankruptcy and section 38 of the Bankruptcy Act allowed for an appeal from the Supreme Court, exercising jurisdiction in bankruptcy, to the Full Court of the Federal Court. That, clearly, was a position – section 38 of the Bankruptcy Act – of a kind referred to in section 24(1)(c) of the Federal Court of Australia Act.
MR DONAGHUE: Indeed.
GAGELER CJ: The day after the cross‑vesting legislation came into force, it was still there. So, an appeal was available to the Full Federal Court under section 38 of the Bankruptcy Act but only from the State Court exercising bankruptcy jurisdiction that would not have been this case. But, your submission, I think, at least implicitly assumes that on that very same day – the day after the cross‑vesting legislation came into force – even when section 38 was still there, section 7(5), although you say it had this procedural element, also had – it was substantive to the point that it triggered the operation of section 24(1)(c) of the Federal Court of Australia Act to immediately expand the appellate jurisdiction of the Federal Court to encompass all matters arising under the Bankruptcy Act, not just those in which a State court was exercising bankruptcy jurisdiction. Sorry to make that so long, but it illustrates the point.
MR DONAGHUE: No, no, I entirely understand what your Honour is putting to me, so my answer will be a little lengthy.
GAGELER CJ: It would match the question, I am sure.
MR DONAGHUE: But the first point I would make is that I think and believe the submission that I made just before your Honour asked me that question was that section 7(5) presupposes a conferral of jurisdiction on the State court by some other provision. So, I was not at that moment addressing the jurisdiction of the Federal Court. There is State jurisdiction under 39(2), section (4), or somewhere else. I put it that way because we recognise that the possible significance that 7(5) has for the jurisdiction of the Federal Court, including the way that your Honour just put to me.
Your Honour is right to put to me that we do say that – let me back up a little. So, section 38 existed after the Cross‑vesting Act, was not repealed until 1996. So, for jurisdiction in bankruptcy, you had a clear source of jurisdiction into the Federal Court, but your Honour, as I understand it, is asking me about the gap between a matter that arises under the Bankruptcy Act within the terms of 7(5) but that is not jurisdiction in bankruptcy.
GAGELER CJ: Yes, which is this case.
MR DONAGHUE: Yes, indeed. So, in that category of case – and there are other possible categories of case in that way – we accept that we do need to find a source of jurisdiction in the Federal Court that allows you to do the thing that section 7(5) requires you to do, which is to institute the appeal only in the Federal Court. There are two paths to that conclusion. One path is the path I adverted to in an exchange with your Honour earlier, which is 15C of the Acts Interpretation Act, which provides that:
Where a provision of an Act, whether expressly or by implication, authorises a civil . . . proceeding to be instituted in a particular court in relation to a matter:
(a)that provision shall be deemed to vest that court with jurisdiction –
GAGELER CJ: What is the provision?
MR DONAGHUE: The provision that authorises the proceeding to be instituted.
GAGELER CJ: But what is it here?
MR DONAGHUE: Section 7(5).
GAGELER CJ: Section 7(5)?
MR DONAGHUE: Yes, 7(5).
EDELMAN J: It is a double action‑type provision.
MR DONAGHUE: Provision, but made express by reading it with the deeming in section 15C. So, that is one answer. And 7(5), of course, refers to an appeal in:
a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by –
So, the “shall be instituted” language, we submit, read with 15C, is expressly or by implication authorising to “be instituted”.
BEECH‑JONES J: On that approach, 7(5) is both a vesting and a channelling provision.
MR DONAGHUE: Yes, and it will not need to have that vesting function sometimes. It will always have it, but there will often be a more obvious source of a conferral of appellate jurisdiction into the Federal Court. But if there is not, then 15C does it. That is one way of doing it. The other way of doing it, which we also embrace, is the pathway that the Chief Justice’s question referred me to. If your Honours have the Federal Court Act there ‑ ‑ ‑
STEWARD J: Just while we are looking for that, Mr Solicitor, is a possible explanation for why there is this little expansion in jurisdiction because the draftsperson had to use the phrase “matters arising” to cover a whole range of different Acts?
MR DONAGHUE: That is our submissions.
STEWARD J: Yes, I see.
MR DONAGHUE: The second table that we are giving your Honours, which I will come to shortly, shows the smorgasbord of provisions that were already there. If you were going to have a workable provision you had to choose a single formula, and they chose the widest one, which was necessary to capture all of the existing categories. That is how we put it.
STEWARD J: Thank you. Sorry to interrupt you.
MR DONAGHUE: So, it is in tab 19, volume 3. If your Honours could turn to section 24. I recognise it is this case, and I recognise I need to deal with it, but just to situate the submission I am about to make, we are dealing here with a reasonably confined category of case where this jurisdictional problem arises, because there did tend to be express provisions in the form of section 38, when State courts were exercising original jurisdiction. It was as the original jurisdiction was transferred to the Federal Court that those provisions became less common. They became less common because, in those kind of cases, 24(1)(a) is an express conferral of jurisdiction where the original jurisdiction has been exercised by a single judge.
It is only in cases where we have original jurisdiction being exercised by a State court, notwithstanding a general shift of original jurisdiction under the Act to the Federal Court that we have the problem. In cases of that kind, the critical question becomes what do the words:
the Court has jurisdiction to hear and determine –
appeals:
in such cases as are provided by any other Act –
or, in cases where the appeal is provided by another Act from a court of a State:
exercising federal jurisdiction –
“Provided”, just as a matter of English language, according to the Macquarie and the Oxford dictionaries, means arranges or stipulates. That is the ordinary meaning of the word. As a provision conferring jurisdiction on a court, the provision should be construed widely. That is many cases, but Roy Morgan v Commissioner of State Revenue 207 CLR 72, at 11, amongst others. One should, in our submission, give a wide reading to the words “provided by another Act”.
If those words meant only where another Act actually confers the jurisdiction on the Federal Court, then 24(1)(c) would do nothing because you would already have the source of conferral in different legislation. In our submission, in order for 24(1)(c) not to be otiose, that expression should be read as contemplating a formula that stops short of an express conferral of jurisdiction, and they have been so read. For example, in the Extradition Act (Cth), section 35(3) provides that a person:
may appeal to the Full Court of the Federal Court –
That is all it says. The Federal Court has held that that language is sufficient to engage 24(1)(c). It so held in a case called Newman v New Zealand.
BEECH‑JONES J: So, this is like a little 15C just for the Federal Court.
MR DONAGHUE: Just for the Federal Court, yes.
BEECH‑JONES J: I see.
MR DONAGHUE: Providing for in a wide range of different possible statutory formulations but contemplating that that is where the appeal goes, 24(1)(c) says the court has jurisdiction in cases of that kind. If that submission is right, our submission is that 7(5) is plainly not contemplating just that you may appeal to the Full Court, it is saying that is the only way you can do it. You must institute it.
GAGELER CJ: Where this all comes out, I think, is that 7(5) is just a little bit different from 7(3) in that you say, well, 7(3) is all about regulating the exercise of a jurisdiction otherwise conferred but 7(5) is just a little tweak. It has a little bit of a substantive kick about it because it has to engage, one way or another, with either section 15C, I think, of the Acts Interpretation Act or section 24(1)(c) of the Federal Court of Australia Act to actually give you the jurisdiction in the Full Court of the Federal Court.
MR DONAGHUE: It might have to. It might have to do that because, I think for about half of the scheduled Acts, you have an express conferral of appellate jurisdiction on the Federal Court which obviously engages. Not depending on 7(5), you just have a provision that says you can appeal matters arising under this Act to the Federal Court. But there are, under a number of those Acts, you do need to analyse it as - - -
GAGELER CJ: I think I would be assisted in knowing the difference between them. You have given us five out of the Schedule.
GORDON J: Asked differently, which ones of the 13?
MR DONAGHUE: Which ones give you an express right and which ones depend on this, either 15C or 24(1)(c), pathway?
GAGELER CJ: Yes, and if the express right – for example, under section 38 of the Bankruptcy Act,it was an express right, but it was an express right in respect of a limited category of jurisdiction, not simply a Felton v Mulligan kind of matter arising.
MR DONAGHUE: Not every matter arising under the Act, yes. If we can give your Honours a note within a few days of the hearing, I would be grateful.
GAGELER CJ: That would be helpful, thank you. I am sorry, Mr Solicitor, we should take our morning break.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.34 AM:
MR DONAGHUE: Your Honours, can I deal with a few issues that I deferred, starting with your Honour Justice Gleeson’s question about section 7(6) of the Cross‑vesting Act. If your Honours need that, it is volume 2, tab 8.
Section 7(6), as we read it, is making a separate provision in relation to a topic not covered by either 7(3) or (5). Section 7(3) or (5) are dealing with appeals from State or Territory Supreme Courts, and it then channels them in the way already addressed between the State or Territory appellate structure and the federal structure, but says nothing, of course, about the position of a State Family Court, so that needed to be dealt with, and that is the topic of concern in subsection (6).
It appears to be attempting to preserve flexibility in that situation, recognising the possibility that matters might arise both under Acts specified in the schedule – which, of course, includes the Family Law Act – but also other matters. If a State Family Court might be dealing with a Family Court dispute or a probate matter or contract matter, or other kinds, and rather than mandating a rule of the kind that you see in 7(3) or (5), it preserves flexibility for that court to proceed as if the matter was not in the Schedule. It may be that it can go into a federal structure by reason of that provision, but it does not have to. That just seems, to us, to reflect a different policy choice in relation to those courts, but not relevantly to impact upon the construction of 7(3) and 7(5).
GLEESON J: What I was wondering was how it operates on the Full Federal Court’s interpretation. What is its utility? Because, presumably, a matter arising under an Act specified in the Schedule needs to be read in the same way in each section.
MR DONAGHUE: That, no doubt, is true, your Honour, but that means that the State Family Court would have received a very wide‑ranging conferral of – let me check the terms of section 4 – a State Family Court is not invested with jurisdiction under section 4(1) of the Act. That is dealing only with Supreme Courts. I think, your Honour, the position is that it is not the recipient of cross‑vested jurisdiction at all.
GLEESON J: On that interpretation, no utility.
MR DONAGHUE: Well, on that interpretation, if – on the Federal Court’s interpretation, no utility, because it is never exercising jurisdiction of that court. Indeed, it is another reason why the Full Court’s construction cannot be correct. Thank you, your Honour. Your Honour the Chief Justice and Justice Gordon both asked me about which Acts have the appeal rights and which Acts do not. It turns out that I do not need to give your Honours a note because we know the answer to that, although if you would prefer to have it as a note, I can do it that way.
GAGELER CJ: I do not think we can wait, Mr Solicitor.
MR DONAGHUE: I understand, your Honour. The Acts that contain no provision creating a right of appeal to the Full Court or expressly conferring appellate jurisdiction on the Federal Court are the Bankruptcy Act, the Commonwealth Electoral Act, the Dental Benefits Act – which I will come back to in a moment – the Family Law Act, the Health Insurance Act, and the Referendum Machinery Act.
GAGELER CJ: And are they all Acts that confer original jurisdiction exclusively on a federal court?
MR DONAGHUE: Exclusively on a federal court?
GORDON J: The reason why I ask is, if you take your first chart in section 27 of the Bankruptcy Act, and one takes the provision between up to and including 96, then after 96 what you have is the present wording, and that wording makes the jurisdiction of the Federal Court – and, for present purposes, as well, call it the Federal Courts – concurrent and exclusive.
MR DONAGHUE: In jurisdiction in bankruptcy.
GORDON J: In bankruptcy.
MR DONAGHUE: Yes, in bankruptcy, but not in “matters arising” under the Bankruptcy Act.
GORDON J: So, there is no express provision dealing with “matters arising”.
MR DONAGHUE: No.
EDELMAN J: This is the gap.
MR DONAGHUE: That is the gap, yes.
EDELMAN J: The gap between the “in bankruptcy” and the “matters arising”.
MR DONAGHUE: Yes, exactly.
GORDON J: So each of those that you are talking about are of that kind, or are they not of that kind?
MR DONAGHUE: One of the challenges in addressing this topic by way of submissions is it moves in a number of different dimensions. It moves temporally and it moves in matters of federal and State jurisdiction, so it is complicated to give comprehensible answers to your Honours. The reason we focused on the point in time immediately prior to the commencement of the Act is that we submit the Act, section 7(5), must have a consistent construction over time, and at the time these provisions were enacted in the Schedule, the State courts all did have original jurisdiction.
So, your Honour has asked me whether they now are all matters where the Federal Court alone has jurisdiction. I think that the answer to that is yes, but I will have to confirm that that is so. But, in my submission, that actually does not matter, because if there are courts other than the Federal Courts that have jurisdiction, and most of them – State Supreme Courts and Territory Supreme Courts – would have cross‑vested jurisdiction under all of those Acts, at least, so it is always going to be possible that a court that is not the Federal Court might exercise jurisdiction under one of those Acts and, if that possibility eventuates, then we need to answer the question I was addressing before the break about 24(1)(c) or 15C of the Acts Interpretation Act.
GAGELER CJ: Mr Solicitor, it might be useful to get the note and for the note to address the situation the day before the cross‑vesting legislation came into force in relation to jurisdiction and sources of jurisdiction in State appeal courts and the Full Court of the Federal Court, and also the position the day after. Because I think ‑ ‑ ‑
MR DONAGHUE: The day after, but not now, not the position now?
GAGELER CJ: You can tell us the position now. All three, I think, yes.
GORDON J: I think, all three, because it will go to show whether there is a consistency in the way in which you contend.
MR DONAGHUE: But the position – the point I have been endeavouring to develop is that it may well be that the reason the Full Court below fell into error is because the position now means that these provisions operate a little differently than they would have operated in their practical manifestation, a little differently now ‑ ‑ ‑
EDELMAN J: The purpose of the 1987 Act did not change according to later legislation.
MR DONAGHUE: It did not. Neither the purpose nor the proper interpretation of it changed. Its practical effect may have changed, but ‑ ‑ ‑
EDELMAN J: Yes.
GAGELER CJ: I think you have to accept, Mr Solicitor, that the effect of your construction of section 7(5), to the extent that it has the triggering effect for jurisdiction, was to expand the jurisdiction of the Full Court of the Federal Court from the moment of commencement of the cross‑vesting legislation in 1987.
MR DONAGHUE: I do accept that.
GAGELER CJ: Yes.
MR DONAGHUE: Under at least some of the Acts. If the Act had used the formula “matters arising under the Act”, then there would not have been a change, but for all of the others, I do accept that it expanded the jurisdiction of the Federal Court.
BEECH-JONES J: But, in either case, you say from the time it commenced, 7(5) affected either a degree of vesting or a degree of additional vesting, or another source of vesting.
MR DONAGHUE: In the Federal Court.
BEECH-JONES J: Yes. And for bankruptcy, currently that appears to be, it all depends on whether 7(5) has that effect.
MR DONAGHUE: For matters that arise under the Bankruptcy Act but are not in bankruptcy.
BEECH-JONES J: Yes.
MR DONAGHUE: Yes, that is correct.
GORDON J: Your two sources are 15C ‑ ‑ ‑
MR DONAGHUE: Section 15C read with 7(5) or 24(1)(c) of the Federal Court Act read with 7(5).
GAGELER CJ: Of course, 15C came into force sometime between 1987 and now.
MR DONAGHUE: I think, 1984.
GAGELER CJ: I see. Good.
MR DONAGHUE: So, that complication is removed.
GLEESON J: Mr Donaghue, another thing I am not entirely clear about is, what is the scope of State courts’ jurisdiction, if you are wrong in saying that section 7(5) invokes 24(1)(c)?
MR DONAGHUE: My submission is that the State courts – neither 7(3) or 7(5) deprive those courts of jurisdiction, they regulate it, because one has the category of case in 7(7) and 7(8) ‑ ‑ ‑
GLEESON J: What is the practical effect, then?
MR DONAGHUE: The practical effect is that the State courts cannot exercise that jurisdiction if 7(5), (7) and (8) are valid, which is why it would be a most surprising construction or conclusion to reach, that the Federal Court does not have jurisdiction to determine appeals which Parliament has required be instituted in the Federal Court.
GLEESON J: I am trying to understand, if the Federal Court does not have exclusive jurisdiction, what is the jurisdiction that the State courts have? Given that there has been a change, obviously, in the bankruptcy jurisdiction over time.
MR DONAGHUE: But if the State and Territory Supreme Courts do not have the jurisdiction under whatever the Act we are talking about is in its ordinary operation, then section 4(1) will give them that jurisdiction. So, one way or the other, the State courts have that jurisdiction, but recognising that the State courts would get the jurisdiction through that 4(1) pathway, Parliament then said, in section 7(5), we do not want you to exercise it.
GLEESON J: So, in the bankruptcy context, we know that there have been four or five cases where the New South Wales Court of Appeal has said, we do not have jurisdiction, we are going to send this on to the Federal Court. Are there Acts that are in the Schedule where, if the Court of Appeal has been wrong to do that, then the Court of Appeal has concurrent jurisdiction that we are not aware of?
MR DONAGHUE: It has concurrent jurisdiction that it can exercise only if section 7(5) does not mean what it says.
GLEESON J: That is what I am trying to understand the scope of.
MR DONAGHUE: Yes. So, I accept that it will have that jurisdiction, by force of section 4 of the Cross‑vesting Act, if it has not been granted it otherwise.
GLEESON J: Perhaps if you could give some examples of that, that would be helpful.
MR DONAGHUE: Well, it will be all of them, your Honour, because in any case where the State Supreme Court would not otherwise have the jurisdiction, section 4(1) of the Commonwealth Act vests it in them. So, in every case, there will be concurrent appellate jurisdiction available either under 39(2) or under section 4(1) of the Cross‑vesting Act – one or the other.
GLEESON J: Presumably, that would be most significant in the context of the Family Law Act.
MR DONAGHUE: And copyright, I think, in practice. It would potentially be significant in intellectual property more generally, because on the Full Court’s construction, in any case where a State Supreme Court is exercising copyright jurisdiction – and you can see from the table that I have handed up, in relation to the Copyright Act, section 131 of the Copyright Act still exists. So, Supreme Courts of a State or Territory still exercise jurisdiction in actions under Part V of the Copyright Act.
On the Full Court’s construction, there is no reason those appeals should not be going to State courts of appeal. In our submission, that example very powerfully illustrates the extent to which, on that construction, section 5 does not work, because it was obviously intended to preserve the exclusive appellate jurisdiction of the Federal Court in copyright matters, but it would not do so.
GORDON J: May I ask a practical question about the intersection between 15C and section 7(5)?
MR DONAGHUE: Yes, your Honour.
GORDON J: I just want to understand how that works. Section 7 – I will start the other way around. Section 15C provides that:
Where a provision of an Act, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
(a). . . deemed to vest –
How does that operate in relation to the language of section 7(5)?
MR DONAGHUE: Subsection 7(5) says that the relevant appeal:
shall be instituted only in –
So, in our submission, that is, at least by implication, authorising to be done the thing that it says must be done or can be done only in the particular place. That is the textual intersection that we rely upon. To say that something shall be instituted only in the Federal Court is at least implicitly to say you may institute it in the Federal Court.
BEECH-JONES J: And 15C, did you say came into effect in 1984? Is that right?
MR DONAGHUE: I think that is right. My friend is the source of that information.
MR CONDON: Your Honours, it was the Acts Interpretation Amendment Act 1984, No. 27 of 1984, section 8 thereof.
MR DONAGHUE: Your Honours, can I perhaps conclude on this point just by noting I mentioned the Dental Benefits Act. That is an Act that was not in the Schedule when the Cross‑vesting Act was enacted, but was added subsequently, and which has never contained a provision conferring a right of appeal to the Federal Court, but where the explanatory memorandum at the time it was added said, the effect of this will be that you can bring appeals to the Federal Court. So, Parliament was apparently contemplating that section 7(5) would intersect with either 24(1)(c) or 15C to have the effect that we rely upon, and, if it did not, then the insertion of that Act into the Schedule was completely ineffective.
BEECH-JONES J: Mr Solicitor, you may not know this, but when the 1996 amendments were made, which repealed section 38, was there anything in the second reading materials about or revealing any assumption that they may have had about how 7(5) might operate?
MR DONAGHUE: I will have to check, your Honour; I think the answer is no. I think what happened was that the jurisdiction was given, as it is now, exclusively to – concurrently to the Federal Court and what was then the Federal Circuit Court, so you only had federal courts exercising it and that meant that you had a right of appeal under 24(1)(a).
EDELMAN J: It is a pretty clear assumption in the Dental Benefits Act, in enacting that Act.
MR DONAGHUE: That it worked in the way – there is.
STEWARD J: Do we have that extrinsic material?
MR DONAGHUE: No, but I can provide it to your Honours.
STEWARD J: Thank you.
MR DONAGHUE: The other point, just to cover this off, is that the Full Court below evidently thought, and you see this first in paragraph 16 of the reasons, on page 436 of the book, the court said:
The jurisdiction of this Court is statutory. Its appellate jurisdiction is conferred by s 24 . . . and includes, relevantly, “in such cases as are provided by any other Act –
And refers to 24(1)(c). The reason that the Full Court did not find that it had jurisdiction under 24(1)(c) is because it construed 7(5) as not applying. Had it construed 7(5) as applying, it appears from the court’s reasoning that it would have accepted that it did have jurisdiction through that 24(1)(c) pathway, and you see that at the bottom of page 449 in paragraph 53. The court said, because of the construction it adopted:
The consequence is that the proposed appeal does not engage the Court’s jurisdiction under 24(1)(c) –
So, if one corrects what we have identified as the error, the Full Court apparently would have accepted jurisdiction by that pathway.
GAGELER CJ: Mr Solicitor, can I just complete my obsessive questioning about section 38 of the Bankruptcy Act, and if you want to just take this on notice.
MR DONAGHUE: I might need to, your Honour.
GAGELER CJ: Did section 38 operate as an exception or exclusion from the scope of the operation of section 39(2) of the Judiciary Act? That is, did it operate to prevent an appeal in State jurisdiction – I am sorry, an appeal within the State Supreme Court? Of course it is in federal jurisdiction.
MR DONAGHUE: Did it do so?
GAGELER CJ: Yes.
MR DONAGHUE: In my submission, necessarily, yes. That is the effect of the words “and not otherwise”.
GAGELER CJ: That would have meant, I think, that the day after the cross‑vesting legislation came into force, when section 38 was still in play, the only appellate jurisdiction that the – I think the Court of Appeal of New South Wales existed then – would have had was that provided by the cross‑vesting legislation itself.
MR DONAGHUE: By section 4?
GAGELER CJ: Yes.
MR DONAGHUE: I think the answer to that, your Honour, is probably. The difficulty that that question seems to highlight is that, as I pointed near the start of my submissions, 4(1) adopts as a criteria for the conferral of jurisdiction that the State court does not have it. It seems to be conferring jurisdiction in circumstances where jurisdiction is otherwise exclusively belonging to the Federal Court. It would be strange to construe that arrangement as conferring jurisdiction that can necessarily never be exercised, even though it was previously exclusive.
It might be that much depends on why it is exclusive. If it is exclusive because it is only being conferred in one place, then section 4 would appear clearly to confer a parallel jurisdiction. If it was exclusive because you have a provision like 38 that says “and not otherwise” then one possibility is that section 4 has conferred jurisdiction but that there is a prohibition on the exercise of that jurisdiction.
GAGELER CJ: Or there is a procedural regulation, as you put it, by section 7.
MR DONAGHUE: Or a procedural regulation of it, yes.
GAGELER CJ: I mean, the vain hope in 1987 was that by 2024 we would not be having arguments about jurisdiction in the High Court.
MR DONAGHUE: Indeed, we were not supposed to be having any of these discussions, your Honour, but ‑ ‑ ‑
GORDON J: Mr Solicitor, can I ask you again – I am going back to 15C – other than Gould v Brown, where else has this Court considered section 15C?
MR DONAGHUE: I will need to take that on notice, as well, your Honour.
GORDON J: I mean, in Gould v Brown it was sort of assumed, I think, that it vested jurisdiction ‑ ‑ ‑
MR DONAGHUE: I think it was – at least, I think from recollection, Justice McHugh ‑ ‑ ‑
GORDON J: He did at 104 and 105.
MR DONAGHUE: Yes, indeed, and assumed it worked.
GORDON J: Yes, and also the earlier judgment at paragraph 21.
MR DONAGHUE: It does. I will certainly look, your Honour, so as to answer that question as best we can. I do make the submission that it is in no way surprising that Parliament would seek to avoid the very kind of problem that I am addressing your Honours on now by ensuring that a gap does not exist in cases where Parliament has expressly or by implication turned its mind to where a proceeding should be instituted, has said it should be instituted in a particular place but has not in terms conferred jurisdiction that corresponds to that command. That is the target of 15C and, in our submission, 7(5) falls squarely within that target.
GORDON J: Your argument is that you do not need it because it is of Acts drafted against the background of 15C which provides the mechanism across Acts.
MR DONAGHUE: I do say that, although, at the time that the Act was drafted ‑ ‑ ‑
GORDON J: Which Act?
MR DONAGHUE: The time the Cross‑vesting Act was drafted, it was drafted in a context where there already were, as you can see in the left‑hand column of our table, provisions that were conferring appellate rights on the Federal Court, and the main focus seems to have been making sure that those exclusive appellate rights were not undermined. What this case and this discussion is focusing on is the fact that there were some gaps or cracks around the edges of that regime.
That, really, takes me to the last point that I need to make, which is the point I foreshadowed in answer to Justice Steward’s question, which is why do we have those gaps or cracks? We have them because the formula that is used in 7(5), “matters arising under the Act”, is not exactly the same as the formula that one found in each of the scheduled Acts. If your Honours look at table 2, which has a cover page and then is just a one‑page document, you can see that there were quite a wide range of formulae used.
What we have extracted here are the provisions concerning the exercise of original jurisdiction, but in each case the provisions conferring appellate jurisdiction referred back to jurisdiction exercised under the Act. Extracting the jurisdictional provisions would not really have assisted your Honours because it would have just directed one to what could be done by way of original jurisdiction, and what could be done is described in these different formulations.
Sometimes it was all matters arising under particular sections, sometimes it was all matters arising under particular parts, sometimes it was all matters arising under particular Acts, sometimes a different expression, like “jurisdiction in bankruptcy”, was used. If section 7(5) had exactly replicated the exclusive jurisdiction of the Federal Court, it would have needed to use all of those different formulations by reference to each of the different scheduled Acts and then it would have needed to be amended every time the jurisdictional provisions changed in any of those scheduled Acts, which just was not a practical approach to the drafting of the provision.
GORDON J: That means the cracks and the gaps are different for each.
MR DONAGHUE: Yes, it does. It does. It means you have a single formulation which used – from the drafter’s perspective, no doubt, had the attraction of using a phrase that this Court had authoritatively explained the meaning of to cover them all, and it was as wide as the widest of them, “matters arising under” an Act, which did mean that, for example, to the extent that matters can arise under the Bankruptcy Act that are not jurisdiction in bankruptcy, the Federal Court had exclusive jurisdiction in the matters in that gap, which it did not have before. It always had exclusive jurisdiction in appeals in matters in bankruptcy, it acquired exclusive jurisdiction over anything extra that arose under the Bankruptcy Act, but that was not in that formulation.
That was just the price of using a single formula in section 7(5), and while it does mean that the effect was to somewhat expand the exclusive jurisdiction of the Federal Court, the alternative construction adopted by the Federal Court is no alternative at all once it is recognised that, on that construction, in not one of the scheduled Acts would the appellate jurisdiction of the Federal Court have remained exclusive jurisdiction the day after the Cross-vesting Act was commenced. That just cannot be right, given the evident purpose of the provision.
GAGELER CJ: And the third possibility, of course, is that section 7(5) assumes that jurisdiction is conferred – or not conferred, as the case may be
on the Federal Court, and simply regulates the exercise of such jurisdiction as may be conferred. I am sorry, that is, really, just going back to an earlier question.
MR DONAGHUE: Yes. If it does that without a conferral via the mechanisms, it creates a situation where Parliament has commanded that a matter arising under the Act in the Schedule shall only be instituted in the Federal Court, which cannot be done because the Federal Court does not have jurisdiction. That provides no warrant for disregarding that command in relation to the State courts, even though they do have concurrent jurisdiction. Someone just has a stalemate; no right of appeal except, presumably, to this Court via section 73.
BEECH‑JONES J: Mr Solicitor, on that approach, is this right: that between 1987 and 1996, the Federal Court had an express conferral of exclusive – I am sorry, they had an appeal jurisdiction in bankruptcy?
MR DONAGHUE: In bankruptcy. Exclusively.
BEECH‑JONES J: Exclusively, but that was expanded, on your argument, to an exclusive jurisdiction in appeals and “matters arising under”, but if 7(5) does not constitute a vesting, then there would be no other place that vested that ‑ ‑ ‑
MR DONAGHUE: There would be no other place to bring the appeal in – that is what the New South Wales Court of Appeal has held in multiple decisions, mostly authored by Justice of Appeal Leeming; has said you just cannot bring it here, you have to go somewhere else. If there is no other vesting, then you cannot go somewhere else, but that does not change the fact that you cannot bring it here, because 7(5) would, in its terms, still prevent the appeal.
BEECH‑JONES J: At least between 1987 and 1996, on that approach, there would be some big lacuna, as it were.
MR DONAGHUE: There would, there would. That is why, I submit, 24(1)(c), or alternatively 15C, should be held to operate to fill the lacuna. That means that the scheme operates perfectly rationally, and it means that parties litigating, trying to pick the right court, despite the endeavour that the Cross‑vesting Act meant we did not have to worry about that anymore, but parties trying to pick the right court just have to apply this Court’s very settled learning about when a matter arises under an Act, and if it arises under the Act, you go to the Federal Court. If it does not, you go to the State Court, and it is simple and clear.
There is no alternative construction that has been offered that both achieves that objective and that achieves the objective of preserving the exclusive appellate role of the Federal Court under these Acts. Your Honours, I apologise, it has taken me much longer than I intended. I have promised your Honours some follow‑up material. I will have to check the transcript to make sure we are comprehensive as to exactly what that follow‑up material is, but could we have a week or two on this?
GAGELER CJ: Yes, I think you can have two.
MR DONAGHUE: If the Court pleases.
GAGELER CJ: Thank you.
MR MENADUE: Could I just address one thing which your Honour just said, whether or not there might have been a lacuna in the legislation up until about 1996. In that case, 7(3) would have applied. If section 7(5) did not apply to a case of this kind, then section 7(3) would have applied, and it would have been picked up by section 7(3) and it could have been heard by a State Supreme Court. That is obviously a question of construction, which I will come to, and how in fact these particular provisions should be read together.
My primary submission – and I will start, actually, towards the end of my outline of oral submissions, and that is the point – I think it is at (g) – which has been raised by the Chief Justice, and that is that ultimately what one has to do – as Justice Leeming said, section 7(5) contains “dual prohibitions”, and that can be found in his decision in Boensch, at 1574. I do not think I need to take your Honours to that, but Justice Leeming said that section 7(5) prohibits the appellant:
from instituting an appeal other than in an appropriate federal court –
and prohibits a State court:
from determining an appeal –
He also referred to that same concept in Eberstaller. In other words – I think it has been conceded by the Attorney‑General – section 7(5) only applies where there is a separate legislative provision which confers a right of appeal on the Federal Court and gives the Federal Court jurisdiction to hear an appeal. If one goes through the 13 Acts, they are replete with examples of where they say that there is – an appeal shall lie to the Federal Court. In the present case, dealing with the Bankruptcy Act, section 38, until it was repealed in 1996, said that appeal may be brought to the Federal Court.
Section 7(5) contains none of that sort of language. It is quite clear that it does not provide for a right of appeal to the Federal Court. Section 15C will not assist because section 15C of the Interpretation Act says that it must be shown that impliedly the relevant provision has authorised the bringing of the appeal. In the present case there is no language whatsoever in section 7(5) which authorises the bringing of an appeal. It merely is, as I said a prohibition.
So, what one has to do is, one asks whether or not one of the 13 Acts confers exclusive appellate jurisdiction on the Federal Court and, if it does, only then is section 7(5) engaged, and it then provides a slightly prophylactic position. But if, in fact, on of the 13 scheduled Acts does not confer a right of appeal, then section 7(5) does not apply. In the present case, section 7(5) does not apply because there is no provision in any one of the 13 Acts which provides that there is a right of appeal to the Federal Court where a single judge of the Supreme Court has exercised jurisdiction arising under the Bankruptcy Act.
BEECH-JONES J: But that is a different argument to the Full Court. You accept that? That is not what the Full Court found.
MR MENADUE: That is correct. It is correct. With respect to the Full Court, this argument was not put to the Full Court in those terms. As a consequence, because section 7(5) does not confer jurisdiction, it does not engage section 24(1)(c) of the Federal Court Act. Section 24(1)(c) of the Federal Court Act says that the Federal Court can hear appeals from judgments of State Supreme Courts, exercising jurisdiction:
in such cases as are provided by any other Act –
Section 7(5) does not provide for a right of appeal – and I emphasise the word “right” – to the Federal Court. Section 24(1)(c) will only apply where one of the 13 Acts specifically provides that there is an exclusive right of appeal for the Federal Court, or even just a right of appeal to the Federal Court, and it does not do so.
There are a number of reasons why section 7(5) can be interpreted as merely prophylactic. One is that it contains almost identical language with section 7(3). I think your Honour the Chief Justice raised that issue. It contains almost identical language, but section 7(3) picks up a very large array of federal legislation – indeed, it picks up all Federal legislation conferred by section 39(2) which is not within the 13 Acts in the Schedule. As a consequence, as I said, there will be a very large array of legislation. It cannot be that Parliament intended that section 7(5) would confer jurisdiction or give a right of appeal in relation to that vast array of legislation and confer jurisdiction upon all of them when, indeed, those State courts already had jurisdiction under 39(2).
The same language is pretty much used in section 7(5). The question then, again, in section 7(5) is whether it was intended that section 7(5) would duplicate the numerous provisions in the 13 scheduled Acts which do confer a right of appeal and jurisdiction on the Federal Court. That would clearly be otiose if it did that; it would be a doubling‑up of jurisdiction, and surely it was not intended either.
GORDON J: Another way of looking at it may be that it was out of an abundance of caution, given the objectives that were trying to be achieved.
MR MENADUE: I am sorry, your Honour?
GORDON J: Another way of looking at it may be to see it in the context in which the Act was being passed. There was a provision of an abundance of caution to ensure that it covered the field.
MR MENADUE: I would agree with that. It was an abundance of curation in the sense of prohibitions and acting as a prophylactic, not in the sense of conferring jurisdiction.
BEECH-JONES J: But, Mr Menadue, section 7(5) might operate as a vesting on any view in the sense that if the appeal provision in the Act in the Schedule is not expressed in relation to “matters arising”, but is narrower, does 7(5) not expand the conferral of the jurisdiction?
MR MENADUE: It does on a literal reading, yes, your Honour.
BEECH-JONES J: Right.
MR MENADUE: And it takes away the jurisdiction, as well, of the Supreme Court.
BEECH-JONES J: So, that way, this point starts to dovetail back to the point that did succeed in the Full Court.
MR MENADUE: Yes, it does. In a sense, the arguments before the Full Court support this argument construction where section 7(5) is just a prophylactic ‑ ‑ ‑
BEECH-JONES J: Because – I am sorry. Because if it did not, if “matters arising” is read literally, you accept that on any view 7(5) does operate as some sort of vesting of jurisdiction in the Full Court?
MR MENADUE: Yes, it does, your Honour. Yes. And we would say – and this, in a sense, does go back to Shergold, and that is another reason – Shergold, in a sense, is almost an independent argument, but Shergold is also an argument for why section 7(5) is merely a prophylactic, because otherwise, if it was not – if it was not just merely intended to protect existing jurisdiction – then there is an implied repeal of jurisdiction. So, in a sense, Shergold is also another reason why section 7(5) should be construed merely as a prohibition, rather than a taking‑away and a provision of jurisdiction.
GAGELER CJ: We are focusing here exclusively on section 7(5)(a), but if we looked at section 7(5)(b), what is that doing? Is that just assuming the appellate jurisdiction of this Court under section 73 of the Constitution and regulating its exercise, or is it doing something more?
MR MENADUE: I am not sure about that, your Honour, frankly. I have not really turned my mind to that, I must say.
GAGELER CJ: It is just that the arguments directed to 7(5)(a) perhaps need to be tested by reference to 7(5)(b) as well.
MR MENADUE: Yes, your Honour, they do.
GAGELER CJ: I think that that is a point that helps you.
MR MENADUE: Yes, thank you, your Honour. Now, in a sense – sorry, another point which can be made in relation to section 7 is that if one looks also at paragraphs (1), (2) and (4), they are all in terms of prohibitions as well. It does suggest that section 7 is really dealing with section (4)(1) and the impact of section (4)(1), and it is doing that by prohibiting certain appeals from being taken to the State courts.
Now, your Honours, I have also, in my outline of submission, in a sense – perhaps if I go back to the beginning. The Solicitor‑General has fairly much taken you, I think, through the provisions of the Bankruptcy Act and section 39(2) – it seems to be accepted in this particular case that there is no debate about the fact that the primary judge was exercising section 39(2) jurisdiction when he made his determination in relation to section 133(1) of the Bankruptcy Act. And it does not seem to be any contention that, but for the operation of section 7(5) of the Cross‑vesting legislation, then the New South Wales Court of Appeal would have had jurisdiction under section 39 to hear the appeal in the present matter. So, therefore, the only question is whether or not section 7(5) applies.
The Attorney‑General has also taken your Honours through the explanatory memorandum and the second reading speech. Indeed, he has not mentioned the preamble, but the preamble says that the Act is not intended to derogate from the jurisdiction of any court, and I would say that that is quite applicable in the present case. What one can clearly divine from the clause 7 of the explanatory memorandum is that there is a general principle that trials and appeals will be heard in the same court, and the only exception to that is where the Federal Court has exclusive appellate jurisdiction.
There is no mention of an expansion of jurisdiction of a kind which the plaintiff is propounding – expansion of that jurisdiction to the Federal Court – and if there had been, then surely, in that particular circumstance, the Attorney‑General would have mentioned it, and it would have been mentioned in the explanatory memorandum. Thus, in a broad context, the cross‑vesting legislation was a reciprocal arrangement for the benefit of each party. There was a general rule that trials and appeals would be heard in the same court, and the only exception to that was contained in section 7(5), where it is quite clear from the second reading speech and explanatory memorandum that the only thing that the federal Parliament wanted to do was to protect the existing exclusive jurisdiction of the Federal Court and go no further.
There is certainly no mention anywhere about State courts losing any of their jurisdiction. The plaintiff has said in its submissions in reply that the Minister spoke erroneously or imprecisely, but in my submission, he did not do that at all. The only focus was on ensuring that the exclusive jurisdiction of the Federal Court was not impinged upon, and there was no intention whatsoever to withdraw any jurisdiction from the Supreme Courts.
GLEESON J: So, is the way that this works that the appellate jurisdiction is identified in the Supreme Court of a State, and then section 5 only applies to the extent that the Full Court of the Federal Court also has jurisdiction on the appeal?
MR MENADUE: In relation to section 7(5), as I see how it applies, your Honour, is that first one looks at the 13 scheduled Acts and one asks whether or not the Federal Court has exclusive appellate jurisdiction under those Acts. If it does, then and only then does section 7(5) apply, because it then ensures that section 4(1) – which has conferred that exclusive appellate jurisdiction on all of the Supreme Courts – cannot be used to get around the exclusive appellate jurisdiction of the Federal Court in those 13 Acts. So, section 7(5) is being used to defend the Federal Court against the operation of section 4(1), but no further. That is how I understand the Act, your Honour.
GAGELER CJ: Well, if you look at subsection (5)(a) it is not just referring to the Federal Court, it is referring to:
the Federal Court or . . . the Federal Circuit and Family Court of Australia (Division 1), as the case requires –
So, perhaps one has to look at the Acts in the Schedule and you look at the Family Law Act, for example and you ask, is there appellate jurisdiction conferred by that – and it may not be on the Federal Court.
MR MENADUE: That is correct your Honour, yes. I do talk about the Federal Court as a rolled-up notion, but ‑ ‑ ‑
GAGELER CJ: There are actually three courts referred to.
MR MENADUE: Yes, it is three courts, but when I refer to the Federal Court, I am actually referring to all three courts.
BEECH-JONES J: Well, your argument focuses on exclusive appellate jurisdiction, is that right, Mr Menadue?
MR MENADUE: It does, yes, your Honour.
BEECH-JONES J: I understand that your earlier argument, the one that is at the last page, simply turns on the absence of appellate jurisdiction in bankruptcy matters.
MR MENADUE: It does, your Honour, in the sense where just a subset of that particular operation – the Solicitor‑General has said that this issue does not arise in many cases, but I do note that in their written submissions, it appears – and I may need to be corrected on this, but in their more comprehensive written submissions they do indicate that under all of the 13 Acts, except one, there is section 39 jurisdiction, original jurisdiction and there is a right of appeal, at least for some part of the Act, “matters arising under an Act”, to a State Supreme Court. So, this is not just a case on its own. It is in a footnote. I think it is footnote 34 of the Attorney‑General’s written submissions, towards the bottom:
With one exception, none of the above‑mentioned appeal provisions exhaustively covered all appeals from all decisions of Supreme Courts in the exercise of original jurisdiction in matters arising under the Act in question . . . That is because the appeal provisions did not provide for appeals from all decisions made by Supreme Courts in the exercise of original jurisdiction conferred solely by s 39(2) of the Judiciary Act.
The exception there appears to be the Petroleum Retail Marketing Franchise Act. I may have read that incorrectly but, if I have, I am sure I will be corrected. So, this is not just on its own; there are other provisions. But clearly the Bankruptcy Act is probably the most significant, where the State court exercises section 39(2) jurisdiction and an appeal would, apart from section 7(5), be heard by the State appeal court.
I have also provided quite extensive written submissions about how a literal reading of section 7(5) would constitute an implied repeal of section 39(2). The plaintiff – and I have referred there in particular to Shergold, which was about jurisdiction, and said that if there is not just a repeal of jurisdiction, but a limitation upon jurisdiction, then it must be clear and express in the wording of the Act. In my submission, it is not clear and express at all that the intention of federal Parliament was to deprive State Supreme Courts of their appellate jurisdiction to hear a matter like the present one.
The Solicitor‑General has said that there is a channelling of jurisdiction from the State Supreme Court to the Federal Court, and indeed, the State Supreme Court never really loses that particular jurisdiction, but it seems to just pop up – but it seems it cannot exercise it. It is almost like this spectral jurisdiction which goes through the State Supreme Court and ends up in the Federal Court. That is not really a repeal of jurisdiction.
In any event, it does not really matter what sort of wording is used. If a State Supreme Court is not authorised to hear a particular matter and a federal court is authorised to hear a particular matter, surely that is either a repeal of jurisdiction, or a limitation upon jurisdiction. Another point which is raised in Shergold, and I only recently noted, is that in Shergold at paragraph 27 – perhaps I might take your Honours to that. Shergold is at volume 4, 1376 ‑ ‑ ‑
GAGELER CJ: It is (2002) 209 CLR 126.
MR MENADUE: Yes, your Honour. Sorry, your Honour – 1376. I will not take your Honours to the main provisions – I have set that out in my written submissions – or take your Honours to what Justice Gaudron said in Saraswati – although, in Saraswati, Justice Gaudron seemed to say it does not just have to be about jurisdiction; it is enough if an earlier Act derogates from a later Act, and in that situation it must be clearly stated.
At paragraph 27, the Court referred to Byrne v Australian Airlines Ltd, which, I understand, was a case in which a question arose – a submission of the appellant’s was that they were entitled to damages from an award, and their Honours Justices McHugh and Gummow observed that:
“[W]here a question arises as to the creation of new rights and liabilities which will engage Ch III of the Constitution, it is to be expected that the Parliament will clearly state its will.”
And then in the context of the present Act, which was about the repeal of jurisdiction, the Court said:
So also where the Parliament, by redefining the jurisdiction of a federal court, withdraws rights and liabilities from what otherwise would be the engagement of Ch III.
What I would say in relation to the present case is that if federal Parliament intends to withdraw rights from State Supreme Courts, which are invested with section 39(2) jurisdiction, pursuant to section 77(3) of the Constitution, they would clearly state their will. And they have not clearly stated their will in the present case.
The Commonwealth and the plaintiff continually beat the drum that the Court should just accept the literal interpretation of the Act, but of course – and I will not take your Honours through all the recent Acts on statutory interpretation – the purpose and the context must be considered at the first stage. In the present case, the purpose and the context, the extrinsic materials, the context of the Act, make it clear that Parliament did not intend to withdraw jurisdiction from State Supreme Courts in the present matter, and in that context in particular, if Parliament was intending to do that in section 7(5) of the Cross‑vesting Act, it would have clearly stated its will, or as is said over the page at paragraph 35, there would need to be very strong grounds for it to do so.
GORDON J: I think it is 34. Needs to be “clearly and unmistakably” – fourth line.
MR MENADUE: It must be either clear and unmistakable, or the Parliament must have clearly stated its will.
GLEESON J: Do you accept that purpose of section 7 was to protect so‑called specialist federal appellate jurisdiction?
MR MENADUE: Yes, existing. What is there and no more.
GLEESON J: How do you say that is done? Is that particularly done by subsections (1) and (2)?
MR MENADUE: No, it is done by section 5, and its operation with subsection (3). Section 7(5) – we have to come back to section 4(1) of the cross‑vesting legislation. Section 4(1) of the cross‑vesting legislation gives to State Supreme Courts the exclusive appellate jurisdiction of the Federal Court. It is clear, on my submission, from the extrinsic materials that Parliament wanted to stop that occurring, and to do that it enacted section 7(5).
EDELMAN J: How does your submission about interpretation of jurisdictional provisions deal with section 7(7), to which 7(5) is subject?
MR MENADUE: I am not sure that section 7(5) is subject. I think, his Honour Justice Leeming said – I think he said in Whitton, which is among the cases – that the basic rule under section 7(5) is a prohibition on jurisdiction, and it is only if the law is not complied with that subsection (7) and subsection (8) come into effect. I think it is drawing a very long bow to say that because of subsection (7) and subsection (8), that somehow there is this dormant jurisdiction sitting around in the Supreme Court which is then reactivated. It is not reactivated. I think Justice Leeming said somewhere that, actually, subsection (7) and subsection (8) are a conferral of jurisdiction. The jurisdiction has been taken away and jurisdiction is then conferred in a situation where the Act has not been complied with. If the Act is complied with, there is no jurisdiction. It is only when the Act is not being complied with, and there has to be some sort of remedial measures does section 7(5) apply.
GORDON J: They do no more than reflect – as the preamble did, and as the explanatory memorandum and the second reading speech did – that this was intended to be a practical scheme and there were going to be practical issues and they had to be resolved, and (7) and (8) reflect that in this new world the practical arrangements had to be subject to situations where – whether by omission or otherwise – a State Supreme Court would deal with a matter within federal exclusive jurisdiction and they did not want to have the matter reheard.
MR MENADUE: Yes, that is correct, your Honour. And indeed, I think a submission was made in Eberstaller by the wife, and she said that – she basically asked the court to continue on with the appeal so that they could hear it under section 7(7). And Justice Leeming said, no, the Act cannot be sidestepped like that.
BEECH-JONES J: What if they form the view that interests of justice require it? That does not sound like a jurisdictional provision.
MR MENADUE: No, your Honour.
BEECH-JONES J: So, the court could hear it if they thought it was in the interests of justice?
MR MENADUE: Only if – they could hear it if it was in the interests of justice, but only in circumstances where section 7(5) had not been complied with and the court had inadvertently started the action – had started hearing the appeal, perhaps because nobody knew about section 7(5), which probably happens sometimes, and it is only if there is inadvertent ‑ ‑ ‑
EDELMAN J: So, really it needs to be read as though the words:
Subject to subsections (7) and (8) –
were removed, and subsections (7) and (8) were commenced with “subject to subsection (5)”.
MR MENADUE: Yes, your Honour. I think so. Yes.
EDELMAN J: Yes.
GAGELER CJ: You have mentioned Justice Leeming on a couple of occasions. Are you referring just to Whitton v Watton?
MR MENADUE: In Whitton v Watton he does – which actually does not take my case very far, your Honour, but in Whitton v Watton he does refer to section 7(5) as being the “basic rule” ‑ ‑ ‑
GAGELER CJ: I am just wanting to pinpoint the references.
MR MENADUE: Yes, sorry, your Honour. You have been referred, your Honours, to two – can I take your Honours to Eberstaller, which is in volume 4, page 1610.
GORDON J: Tab 43.
MR MENADUE: Your Honours have been referred to 2 Elizabeth Bay as a case, but in that case, basically, his Honour was repeating what he said in Eberstaller. I am at page 1604. It was a dispute under the Family Law Act, there were consent orders made, the husband was required to transfer his interest to the wife. The husband purported to transfer the family home to a third party, the Supreme Court granted the wife an interlocutory injunction, and in a final judgment, the Supreme Court set aside the contract purporting to transfer the property to the third party. Now, in that particular case – then the husband appealed to the Court of Appeal. In paragraph 18, his Honour said that:
It is sufficient to observe that the dispute remained a matter arising under the Family Law Act (Cth).
In a number of these cases, your Honours, the courts have not expressly, I do not think, looked at it in the terms which have been discussed earlier in terms of being clearly a prohibition, although his Honour in this case at paragraph 21 picks up what is said in Boensch and says that there are two prohibitions, and this time says it is:
prohibitions on instituting, and on determining, certain classes of appeals.
In these particular cases, it really was not necessary for the courts, most of them at least, to go to the 13 scheduled Acts and ask themselves whether or not there was appellate jurisdiction in the Federal Court. There just was. This was not about section 39 appellate jurisdiction in bankruptcy. In this particular case, it was a matter arising under the Family Law Act.I do not have the exact provision, but clearly the Family Law Act – I think it might have been section 94 at that stage – had its right of exclusive appeal to the Federal Court. So that issue, in a sense, just did not arise. And over at paragraph 25, the first sentence:
The whole of the subject matter of the appeal is a matter arising under the Family Law Act (Cth).
So, his Honour did not need to consider whether or not the Federal Court had jurisdiction to hear the appeal. Then, further down, towards the end – second half of paragraph 25:
It was put orally on behalf of the husband that the words were merely procedural or directory. There is nothing in the statutory text to deny those words their ordinary meaning.
Then, further down, at paragraph 27, as I mentioned, the wife had asked the court to just continue with the hearing so that subsection (7) would be tripped, and then the court could hear it in the interests of justice. His Honour said:
However, and contrary to the wife’s written submissions, it would be wrong to permit the appeal to commence being heard, such that, if the interests of justice so required, it could be heard and determined by this court.
GORDON J: That is because, is it not, the language in subsection (7) and subsection (8) talks about the fact that the hearing has commenced.
MR MENADUE: Yes.
GORDON J: This was prior to that.
MR MENADUE: Exactly, yes, your Honour, it was prior to that and in a sense those provisions – well, section 7(5) cannot just be flanked by commencing to hear the proceeding. It is a substantive provision which must be complied with. Then he says at paragraph 27, the last sentence:
The commands in s 7(5) against instituting and determining certain classes of proceedings are not to be sidestepped by hearing the proceedings so as to engage s 7(7).
Section 7(7) is, in truth, a limited investment of jurisdiction to hear and determine certain appeals.
GAGELER CJ: Do you agree with that?
MR MENADUE: I am sorry?
GAGELER CJ: Do you agree with that?
MR MENADUE: In a sense – it is an interesting question, your Honour.
GAGELER CJ: Perhaps you ‑ ‑ ‑
MR MENADUE: I am not sure that ‑ ‑ ‑
BEECH-JONES J: You are worried that if you say yes, that 7(7) vests jurisdiction ‑ ‑ ‑
MR MENADUE: In a sense, it is not necessarily a limited jurisdiction. Perhaps part of section 7(5) has not been lopped off and it sits there, but most of section 7(5) has been lopped off and it is gone, and it does not really matter whether or not one – it is a limited investment of jurisdiction at all. Most of ‑ ‑ ‑
GAGELER CJ: Whether it is limited or not, is it an investment of jurisdiction?
MR MENADUE: Probably not, your Honour. It is probably just – it is, in a sense, the residue of jurisdiction. But I might think about that, your Honour.
GAGELER CJ: How long will the balance of your submissions be?
MR MENADUE: Not much longer, I would not have thought, your Honour.
GAGELER CJ: The Court will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
MR MENADUE: Your Honour, just before the break, your Honour asked me whether I agreed with the contention of his Honour Justice Leeming that the Cross‑vesting Act:
Section 7(7) is, in truth, a limited investment of jurisdiction to hear and determine certain appeals.
At paragraph 28 of his judgment in Eberstaller. Your Honour, the New South Wales Court of Appeal had jurisdiction under section 4(1), and sections 7(7) and (8) merely ameliorate the hard‑line prohibitions in section 7(5) to section 4(1) jurisdiction conferred on the State Supreme Courts. So, he already has jurisdiction under section 4(1), and the question is whether he can exercise it. Sections 7(7) and 7(8) give him a dispensation in that regard. So, the prohibition, as I said, is ameliorated.
GAGELER CJ: So, you disagree?
MR MENADUE: I disagree, yes, your Honour.
GAGELER CJ: And you say section 7 in its entirety is procedural and not jurisdictional?
MR MENADUE: Yes, your Honour. Your Honour, have been discussing – we were on Eberstaller. I am sure I have created the confusion here. The only reason Eberstaller is, in a sense, relevant, is because it is in the context of the literal interpretation of section 7(5) that the plaintiff and the Attorney‑General had put forward, effectively, trying to say that really there is not a loss of jurisdiction, but I sense that boat may indeed have already sailed, because it appears that the Solicitor‑General accepts the fact that there is no conferral of jurisdiction under section 7(5) and (7). Or, in a sense, I think ‑ ‑ ‑
GAGELER CJ: I do not think you can assume that.
MR MENADUE: All right, but that is the context, anyway, in which ‑ ‑ ‑
GORDON J: Mr Menadue, I think that is actually the opposite to what I understand the submission to be put.
MR MENADUE: Is it?
GORDON J: I think so. In the sense that it was put in a number of ways, but – as I understand it – first of all, it was a provision giving jurisdiction, relying on 15C, that is the first argument, and then 24(1)(c) is the second argument, and then third ‑ ‑ ‑
MR MENADUE: I see, yes, yes. In that sense, I do see, yes. I was thinking about the original arguments, before section 15C raised its head.
GORDON J: I think the argument might have moved on a bit.
MR MENADUE: Yes, your Honour.
JAGOT J: You would also then disagree with the Court of Appeal. I think it is Justice Leeming, again, in Re Whitton [2018] NSWCA 277, at 18 to 23, at tab 56, which seems to be to the same effect as Eberstaller at 28. I think that is the case you were referring to was Whitton v Watton. It is Whitton as Trustee in Bankruptcy Estate of Watton.
GAGELER CJ: Can you remind us where that is in the materials?
GORDON J: Tab 56.
JAGOT J: That is the judgment of Justices McColl, Leeming and Sackville – paragraph 18 through to ‑ ‑ ‑
MR MENADUE: I do apologise, your Honour, what page is that?
JAGOT J: Pages 1840 to 1842. It seems to accept that 7(5) operates in the vesting in the Federal Court for any “matter arising under the Bankruptcy Act”. It turned on that they did not think the cost determination actually arose “under” the Bankruptcy Act in a traditional sense, it was merely lurking in the background. You would disagree with that as well, would you not?
MR MENADUE: That subsections (7) and (8) are merely lurking in the background, your Honour?
JAGOT J: No, no, that the effect of what their Honours are saying is that section 7(5) is a vesting provision. So, if you look at paragraph 19, for example, it is a command:
the appeal must in instituted in and determined by the Full Court of the Federal Court.
subject only to 7(7). You referred to the “basic rule”, and that quote is 22 – remember ‑ ‑ ‑
MR MENADUE: Yes, yes. I do not know that that is a conferral vesting of jurisdiction though, your Honour. Is it not really just saying you cannot – jurisdiction is vested otherwise, some other Act, and it is just a prohibition?
JAGOT J: No. I think if you look at 19 – the end of 19 – it is talking about “commands” as to where “the appeal must be instituted”. That seems to be a bit more than a prohibition.
GORDON J: And, possibly, the last sentence of 22.
MR MENADUE: Yes, well, this is the judgement, I think, of – Justice Leeming was one of the judges on this, and Justice Leeming has said in at least two cases that it is a prohibition. I do not think that those words go any further than that. There is nothing in them which says something along the lines of, an appeal shall lie to, or an appeal may be taken to, which would give a right of appeal. This merely says that where there is a right of appeal to be found in some other Act, then you are prohibited from taking that appeal to the New South Wales Supreme Court. To the extent that his Honour may take it further than that, I would say it is wrong, with respect.
GORDON J: Does that apply to the first sentence of paragraph 23?
MR MENADUE: I do not think that changes anything, your Honour.
GORDON J: Thank you.
MR MENADUE: All of these cases, they do not really have to look at it in terms of this prohibition issue because in most of the cases there is jurisdiction specifically conferred by one of the 13 Acts, and this is why, in a sense, it is very easy to overlook what section 7(5) is really all about because very few of these judges, with respect to them, have had to really consider that and take the step of first, is there jurisdiction in the Federal Court under one of the 13 Acts, and almost universally there is. In the present case there is not.
That is why, in a sense, if one reads these cases, they are not really grappling with the issue which we have to grapple with. The only two cases which have really come before the New South Wales Court of Appeal, which have dealt with the issue of a – where the New South Wales Court of Appeal had jurisdiction under section 39(2) of the Bankruptcy Act are Singh v Khan and the present case.
GLEESON J: So what do you say the word “provided” means in section 24(1)(c) of the Federal Court Act?
MR MENADUE: It means the Act must specifically say that there is a right of appeal to the Federal Court.
GLEESON J: How is that different from the conferral of jurisdiction?
MR MENADUE: Well, I suppose the court needs to have jurisdiction conferred on it to hear a particular matter and then a party has to have a right of appeal. Both of those things must appear, and in the present case I say neither of them appear.
STEWARD J: Could you just repeat what you say “provided” means?
MR MENADUE: You would have to find in a separate Act a right of appeal – sorry, a conferral of jurisdiction on the Federal Court and almost a universal language which is used in the 13 Acts is that a right of appeal shall lie.
STEWARD J: If that is the case, why do you need section 24?
MR MENADUE: Section 24(1) and (2), basically, say that if there is a right of appeal – that if there is a decision of a single judge at the Federal Court, then there is a right of appeal; so, it does not arise. It is only in section 24(1)(c), where, as provided in some other Act, and then one has to look – there has to be some specific provision in an Act which says that the Federal Court has jurisdiction in relation to that matter and a party has a right of appeal.
STEWARD J: But if that other Act confers the jurisdiction on the court, what is the function of 24(1)(c)? Is it just to confirm it?
MR MENADUE: No, just to pick it up and say the Federal Court can now hear that.
BEECH-JONES J: Does not 39B(1A) on any view give the Federal Court at least jurisdiction under the Bankruptcy Act “matter arising under”?
MR MENADUE: So, 39B ‑ ‑ ‑
BEECH-JONES J: Section 39B(1A) of the Judiciary Act.
MR MENADUE: Yes, the general plenary jurisdiction of the – it only gives jurisdiction in relation to original matters.
BEECH-JONES J: All right, so that is the appeal limit?
MR MENADUE: Yes.
BEECH-JONES J: So, it reduces to a necessity to have something about an appeal.
MR MENADUE: Yes. I am sorry, your Honour, I am not sure if I ‑ ‑ ‑
STEWARD J: No, no, you did, thank you.
GAGELER CJ: Section 24, in that respect, is the appellate jurisdiction equivalent of section 19. It says the court has original jurisdiction in matters provided for under other Acts.
MR MENADUE: Yes, your Honour. I am coming to a conclusion, your Honour. Now, the plaintiff and Solicitor‑General have spent most of their submissions attacking what is effectively the last stage of the reasoning of the Full Court, and that is where the Full Court said that the single judge of the Supreme Court must have been exercising cross‑vested jurisdiction. I do not think that is entirely necessary to their reasoning. Their reasoning effectively was that where the Supreme Court was exercising section 39(2) original jurisdiction and that matter could go on appeal to the New South Wales Court of Appeal under section 39(2)(b), then section 7(5) had nothing to say about it. So, ultimately that was a matter which section 7(3) would send to the New South Wales Court of Appeal.
As I said, that has been, in a sense, the main avenue of attack on the decision of the Full Court. In my submission, it is not really central to their reasoning, and it is quite possible to find another formula which gives effect to their reasoning. In my written submissions, I have set out a possible formula. A possible formula would be along the lines – I think paragraph 46 to 49 of my written submissions. What that broader interpretation is, is that it focuses not on the original jurisdiction of the judge in the Supreme Court, which has been a matter of hot contention – and I understand the argument of the Attorney‑General that there were originally cases before the enactment of the Jurisdiction of Courts (Cross‑vesting) Act under which section 39(2) primary decisions went on appeal to the Federal Court, and that would not necessarily be captured by the formula which the Full Court adopted.
It is quite possible, though, just to focus upon the appellate jurisdiction of the Supreme Courts and exclude from the operation of section 7(5) appeals where the New South Wales Court of Appeal, or a State Court of Appeal, would have appellate jurisdiction pursuant to section 39(2). That would exclude all of the cases where the Federal Court had exclusive appellate jurisdiction – I mean, exclusive of each other – and would give effect to the intentions, the context and purpose of section 7(5), and section 7(3) would be read accordingly.
As I said, that would answer all of the complaints which have been made about the fact that the Full Court did not focus upon the appellate jurisdiction, but focussed instead on the original jurisdiction. So, in that particular case, where there was at the time when the cross‑vesting legislation was enacted, and State courts had section 39(2) jurisdiction, where appeals had to go to the Federal Court, they would be excluded from that definition because there would be no section 39(2) appellate jurisdiction in that case. But in the present case, where there would be both section 39(2) jurisdiction at first instance, and there would be section 39(2) jurisdiction at appellate jurisdiction, but for the operation of section 7(5), then in this particular case the New South Wales Court of Appeal would continue to have its appellate jurisdiction.
GORDON J: Does that mean you get a different result for the Acts in the Schedule, depending upon the terms of the legislation?
MR MENADUE: Not in my submission. If the New South Wales Court of Appeal has section 39(2) jurisdiction, then there will be no provision in the Acts which could possibly give the Federal Court exclusive jurisdiction, because they are mutually exclusive categories. If something had been reserved to the Federal Court for appeal, then the New South Wales Court of Appeal could not have jurisdiction under section 39(2), and vice versa. I do not think that there are any exceptions to that. I do not know if there is some other potential formula. Maybe one just is asked to look first at the ‑ ‑ ‑
BEECH‑JONES J: Mr Menadue, this involves, as I understand, paragraph 47 of your submissions, reading down the phrase:
“a matter arising under an Act specified in the Schedule” –
MR MENADUE: Yes, your Honour.
BEECH‑JONES J: Right. I understand.
MR MENADUE: It may well be that the court could just say that the parties have to go and look at the federal Act first, and decide whether or not they should be taking an appeal to the Federal Court, and if not – leaving aside section 4(1), of course – then, in that situation, if that situation does not apply, then section 7(4) does not apply, and by extension, section 7(3) is enlivened.
Those are my submissions in relation to that, your Honour. My only other potential submission, your Honour, is in relation to costs. I have
made some written submissions in relation to costs. I do not know that I need to address you on that.
GAGELER CJ: No. We will take them into account.
MR MENADUE: Thank you.
GAGELER CJ: Thank you, Mr Menadue. Mr Condon.
MR CONDON: May it please your Honours. Justice Gordon asked about whether there was any authority in relation to section 15C of the Acts Interpretation Act. In the time available, we found two of some significance from this Court. We do not have copies, but I will give your Honours the citations.
The first is a case called PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 – and the reasoning of the plurality at paragraph 25. That seems to apply section 15C without much analysis, with respect, to section 6(1) of the Foreign Judgments Act1991, albeit in a way that would be consistent with the outcome the plaintiff and the Solicitor‑General contend before your Honours. The second one is a judgment of Thomas v Mowbray (2007) 233 CLR 307 at paragraph 55, the judgment of Justices Gummow and Crennan. There, their Honours make plain the point that once 15C jurisdiction is enlivened, the adjectival incidents of procedure, including rights of appeal, are also picked up by the conferral of jurisdiction.
Surprisingly, or perhaps not, over lunch we could not find any case which dealt particularly with bankruptcy jurisdiction by reference to section 24(1)(c) of the Act. To use the overworked expression in this case, there may be a lacuna or a crack there, but we cannot find any case from, for example, the Full Bench of the Federal Court that has looked at the matter.
It will come as no surprise, your Honours, that the plaintiff adopts the submissions of the Solicitor‑General. Can I just raise a couple of matters. We, with great respect, endorse the position that what the Court needs to do in this case is adopt the practical – or seek a practical and functional outcome to the interpretation of the legislation. That was a course that commended itself to their Honours in the Full Court in NEC. Your Honours have been taken to NEC (1992) 36 FCR 258, it is page 1806 in volume 5, tab 54. We would commend to your Honours what fell from their Honours at the bottom of page 259 of the report.
BEECH-JONES J: Mr Condon, while I have you, you have just adopted what the Solicitor‑General submitted.
MR CONDON: Yes, your Honour.
BEECH-JONES J: I gather that includes the proposition that 7(5), taken with 15C or 24(1)(c) is a vesting. Where the vesting is said to be to:
the Full Court of the Federal Court or of the Federal Circuit and Family Court . . . as the case requires ‑ ‑ ‑
MR CONDON: Yes.
BEECH-JONES J: ‑ ‑ ‑ which one, or both? How do you find out which court gets it, including, for example, in the Dental Benefits Act, which I think does not have anything to do – no express provision vesting it in one or the other.
MR CONDON: I cannot assist your Honour. I apprehend the answer may be by reference to the provisions of the legislation setting up the respective courts, but I cannot assist your Honour in answering that question.
GAGELER CJ: In NEC, the answer to question 1, given by the Full Court, indicates that it accepted that the New South Wales Court of Appeal had some appellate jurisdiction in that case.
MR CONDON: Yes.
GAGELER CJ: Are you able to unpack that? If you cannot, that is all right.
MR CONDON: I cannot, I apologise. I would add, of course, that their Honours looked at the preamble of page 260 in a way that would be consistent with the construction we propose to your Honours, that the court can construe the legislation with a view to determining what is the appropriate court in a particular case – and, particularly, picking up the concluding words of the first large paragraph on page 260. To that extent, the preamble certainly assists our construction of section 5(7). But I apologise that I cannot answer the Chief Justice’s question, although I can provide a note if the Court requires.
GAGELER CJ: I can wade through it myself. Thank you.
MR CONDON: I apologise, it should be my job to assist your Honours. Can I then just attend to the last matter which fell from my learned friend, Mr Menadue, which is perhaps the alternative construction Mr Menadue propounded to your Honours. One point should be made plain at the outset, that is not to the extent relevant what the Full Court was asked to decide and did decide. Their Honours in the Full Court answered a question at paragraph 41, page 445 of the court book, by reference to the nature of a jurisdiction exercised at first instance. So, what is now before the Court as the alternative proposition was not a proposition advanced to their Honours in the Full Court, and perhaps shows fragility of a submission which is rehearsed at least initially by my learned friend, Mr Menadue.
As we understand the submission, what is asserted as the alternative proposition is that section 7(5) ensures that federal courts will hear all appeals within the exclusive jurisdiction of the Full Court of the Federal Court – or a federal court. I am picking up paragraph 50 of my learned friend’s written outline of submissions. One can start with the proposition that the terms of a schedule, the 13 Acts there expanded, represent a choice made by the Parliament as to legislation which should remain within the exclusive jurisdiction of a federal court, having regard to the Federal Court’s expertise in that particular area. It is a legislative choice.
As matters presently stand, if the analysis which my learned friend now advances before your Honours is that one now looks at the present position, as we stand here today, May 2024, five of the Acts in the Schedule contain no express conferral of jurisdiction on a federal court – I understand that the Solicitor‑General will provide that in a note. To the extent the Court is being asked to draw a construction of this legislation that achieves a practical outcome – and you see perhaps to achieve an outcome which gives effect to the purpose of maintaining the jurisdiction of federal courts as a court of particular jurisdiction. It does not do so in relation to those five cases.
This Court should not readily come to the conclusion, or adopt a construction where the Parliament has identified Acts, it has done so without giving proper operation to section 7(5). What is not plain in my learned friend’s outline of submissions is, however, when does one look at this issue of original jurisdiction of a Full Court of a Federal Court. Is it now? Is it at the time when the Act was passed in 1987? To come back to what the Chief Justice has been asking, the day before, the day after the enactment in May 1987? Or was it some later point in time?
If it is at the moment the Act was passed in 1987, the immediate problem is that one of the Acts in the Schedule did not exist at that point of time; it was only enacted later. We know from what fell in arguendo today, the course of scope of the Bankruptcy Act jurisdiction to appeal varied between 1987 and 1996. It is precisely these arid forms of disputation concerning which court has jurisdiction for the practical and commonsense construction of the Cross‑vesting Act was designed to avoid. But on my
learned friends’ construction, the first step the Court has to do, assuming the language of the Act of a section accommodates it, is to go back and start determining which court has jurisdiction before section 7(5) is given practical consequence.
It is one thing to submit in relation to precision, which was argued before the Full Court, what one can imply some words into a legislation. This alternative submission requires even further implication because it is now confined to the precision on the appeal. It is difficult to see, having regard to the language of subsection (5), exactly where those words would be inserted and what they would say, not the least for the reason I have indicated. There is some doubt on my learned friends’ submission as to when the analysis takes place, but the short point is this requires a degree of implication, which the language of the section simply does not accommodate.
Those are our submissions in reply.
GAGELER CJ: Thank you, Mr Condon. The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 2.44 PM THE MATTER WAS ADJOURNED
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