GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
HBSY PTY LTD PLAINTIFF
AND
GEOFFREY LEWIS & ANOR DEFENDANTS
HBSY Pty Ltd v Lewis
[2024] HCA 35
Date of Hearing: 9 May 2024 Date of Judgment: 9 October 2024
S106/2023
ORDER
1.A writ of certiorari issue directed to the second defendants, the Federal Court of Australia and the Judges thereof, to quash the decision of the Full Court of the Federal Court of Australia made on 14 July 2023 in proceeding NSD 726 of 2022 (HBSY Pty Ltd v Lewis[2023] FCAFC 109).
2.A writ of mandamus issue directed to the second defendants commanding them to hear and determine the plaintiff's appeal from the whole of the judgment of the Supreme Court of New South Wales given on 24 June 2022 in proceeding 2019/263639.
3.The first defendant pay the plaintiff's costs in the Full Court of the Federal Court of Australia and in this Court.
Representation
M K Condon SC with D K Smith for the plaintiff (instructed by Roberts & Partners Lawyers)
P J Menadue for the first defendant (instructed by Shields Lawyers)
S P Donaghue KC, Solicitor-General of the Commonwealth, with C Ernst for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
Submitting appearance for the second defendants
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
HBSY Pty Ltd v Lewis
Federal Court of Australia – Jurisdiction – Statutory construction – Where plaintiff brought proceedings in New South Wales Supreme Court – Where plaintiff relied on s 153 of Bankruptcy Act 1966 (Cth) – Whether Full Court of Federal Court of Australia had jurisdiction to hear and determine appeal involving matter arising under Bankruptcy Act– Whether s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) engaged – Whether s 24(1)(c) of Federal Court of Australia Act 1976 (Cth) engaged.
Words and phrases – "appellate jurisdiction", "cross-vesting", "Federal Court of Australia", "federal jurisdiction", "jurisdiction", "matter arising under", "right of appeal", "right to appeal", "Scheduled Act", "writ of certiorari", "writ of mandamus".
This is an application in the original jurisdiction of the High Court under s 75(v) of the Constitution for writs of certiorari and mandamus directed to the Federal Court of Australia.
In circumstances more fully described in the reasons of the plurality, the application arises from a decision of the Full Court of the Federal Court[1] holding that the Full Court did not have jurisdiction to entertain an appeal from a decision of a single judge of the Equity Division of the Supreme Court of New South Wales[2] which turned on an issue as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
HBSY Pty Ltd v Lewis [2024] HCA 35
Case
[2024] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for writs of certiorari and mandamus concerning a decision of the Full Court of the Federal Court of Australia. The plaintiff, HBSY Pty Ltd, had initiated proceedings in the Supreme Court of New South Wales, relying on section 153 of the *Bankruptcy Act 1966* (Cth). The Full Court of the Federal Court had dismissed the plaintiff's subsequent appeal from the Supreme Court's judgment, finding the appeal incompetent.
The central legal issue before the High Court was whether the Full Court of the Federal Court possessed the federal appellate jurisdiction to hear and determine an appeal from a decision of a single judge of the Supreme Court of New South Wales, where that decision involved a matter arising under the *Bankruptcy Act 1966* (Cth). This involved an examination of the interplay between section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth) and section 24(1)(c) of the *Federal Court of Australia Act 1976* (Cth).
The High Court reasoned that section 7(5)(a) of the *Cross-vesting Act*, when purposively construed, neither conferred federal appellate jurisdiction nor authorised the institution of an appeal in a manner that would attract federal appellate jurisdiction. Instead, the provision was found to regulate the exercise of existing federal appellate jurisdiction. It restricts appeals from State Supreme Court single-judge decisions to the Full Federal Court only if that court would have had federal appellate jurisdiction to hear such an appeal apart from the *Cross-vesting Act*. The High Court concluded that the appeal in this case, concerning a matter arising under the *Bankruptcy Act*, was not one that the Full Federal Court had jurisdiction to hear independently of the *Cross-vesting Act*.
Consequently, the High Court ordered that a writ of certiorari issue to quash the Full Court's decision, and a writ of mandamus issue directing the Full Court to hear and determine the plaintiff's appeal. The first defendant was ordered to pay the plaintiff's costs.
Orders
Orders of the court
1. A writ of certiorari issue directed to the second defendants, the Federal Court of Australia and the Judges thereof, to quash the decision of the Full Court of the Federal Court of Australia made on 14 July 2023 in proceeding NSD 726 of 2022 (HBSY Pty Ltd v Lewis [2023] FCAFC 109).
2. A writ of mandamus issue directed to the second defendants commanding them to hear and determine the plaintiff's appeal from the whole of the judgment of the Supreme Court of New South Wales given on 24 June 2022 in proceeding 2019/263639.
3. The first defendant pay the plaintiff's costs in the Full Court of the Federal Court of Australia and in this Court.
Background
Background to the litigation
The historical explanation will, I hope, be clearer for being set against the background of a description of the scope of the federal jurisdiction that the Federal Court and State Supreme Courts each have, and in the relevant past have had, apart from the Cross-vesting Act with respect to different categories of civil matters arising under the Bankruptcy Act. The jurisdictional background Federal jurisdiction generally Federal jurisdiction is authority to exercise the judicial power of the Commonwealth in order to determine a justiciable controversy; correspondingly, State jurisdiction is authority to exercise the judicial power of a State in order to determine a justiciable controversy.[4] [4]Rizeq v Western Australia (2017) 262 CLR 1 at 22 [50], quoting Baxter v Commissioners of Taxation(NSW) (1907) 4 CLR 1087 at 1142. The settled effect of Ch III of the Constitution is that, other than the federal jurisdiction conferred on the High Court directly by s 75 of the Constitution, federal jurisdiction: can only be conferred or invested by a law enacted by the Commonwealth Parliament; can only be conferred on or invested in a court; and can only be conferred or invested with respect to one or more of the categories of "matter" in respect of which federal jurisdiction is conferred on the High Court by s 75 of the Constitution or can be conferred on the High Court by a law enacted by the Commonwealth Parliament under s 76 of the Constitution. Within those categories of matter, by operation of s 76(ii) of the Constitution, is any matter "arising under" a law made by the Commonwealth Parliament. With respect to all or any such matters, the Commonwealth Parliament is empowered by s 77(i) of the Constitution to confer federal jurisdiction on all or any federal courts it might choose to create under s 71 of the Constitution and is empowered by s 77(ii) of the Constitution to make the federal jurisdiction it confers on a federal court exclusive of State jurisdiction. Further, the Commonwealth Parliament is empowered by s 77(iii) of the Constitution to invest federal jurisdiction in any court of a State, and such federal jurisdiction as it invests in a State court displaces any overlapping State jurisdiction of the State court through the operation of s 109 of the Constitution.[5] [5]Burns v Corbett (2018) 265 CLR 304 at 350-351 [80]-[81]. Such federal jurisdiction as the Commonwealth Parliament might choose to confer on a federal court under s 77(i) of the Constitution or to invest in a State court under s 77(iii) of the Constitution can be original or appellate jurisdiction,[6] and can extend to determining the whole of a matter or can be confined to determining some defined part of a matter.[7] Moreover, federal jurisdiction with respect to the same matter can be conferred on one federal court or State court alone or on several federal courts or State courts concurrently. [6]Ah Yick v Lehmert (1905) 2 CLR 593 at 603.[7]Abebe v The Commonwealth (1999) 197 CLR 510 at 531 [39], 534 [49].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAGELER CJ
GORDON, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ
Though the Commonwealth Parliament can always amend an Act by implication, the Commonwealth Parliament "does not change the law simply by betraying a mistaken view of it".[52] That is what I infer has happened here. The circumstance that the Commonwealth Parliament assumed that s 7(5)(a) of the Cross-vesting Act had a different operation is not a reason to depart from the objective construction of s 7(5)(a) that I consider has always been correct.[52]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 506 (quotation marks omitted). See also McNamara v The King (2023) 98 ALJR 1 at 11 [34]; 415 ALR 223 at 232.Conclusion Purposively construed within the context of the Cross-vesting Act, s 7(5)(a) neither itself confers federal appellate jurisdiction nor authorises the institution of a proceeding by way of appeal so as to attract the operation of s 15C of the Acts Interpretation Act to confer federal appellate jurisdiction. The provision is not directed to the conferral or investiture of federal appellate jurisdiction at all but rather to the exercise of federal appellate jurisdiction otherwise conferred. On its proper construction, s 7(5)(a) of the Cross-vesting Act does no more than restrict a proceeding by way of appeal from a decision of a single judge of a State Supreme Court raising for determination a matter arising under a Commonwealth Act listed in the Schedule to being instituted in and determined by the Full Court of the Federal Court or of the Federal Circuit and Family Court of Australia (Division 1). The provision does so if but only if, apart from the Cross-vesting Act, one or other of those Courts has federal appellate jurisdiction to entertain an appeal from a decision of a single judge of a State Supreme Court with respect to the matter in question. The appeal in the present case from a decision of a single judge of the Equity Division of the Supreme Court of New South Wales determining a matter arising under s 153 of the Bankruptcy Act is not one which the Full Court of the Federal Court has federal appellate jurisdiction to determine apart from the Cross-vesting Act. Neither alone nor in combination with s 15C of the Acts Interpretation Act does s 7(5)(a) of the Cross-vesting Act confer such federal appellate jurisdiction upon it. The application should be dismissed. The plaintiff should pay the costs of the first defendant. Introduction This case concerns the scope of the appellate jurisdiction of the Full Court of the Federal Court of Australia ("the Full Court") to hear and determine an appeal involving a matter arising under the Bankruptcy Act 1966 (Cth) from a single judge of the Supreme Court of New South Wales ("the Supreme Court"), dismissing the plaintiff's claim for relief.[53] [53]HBSY Pty Ltd v Lewis (2022) 108 NSWLR 558. The Full Court dismissed the plaintiff's application for an extension of time to appeal as incompetent. The Court held that s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("the Cross-vesting Act") did not apply to engage the Court's appellate jurisdiction under s 24(1)(c) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") to hear and determine an appeal from a State Supreme Court exercising federal jurisdiction because the decision under appeal was not made in the exercise of jurisdiction invested by s 4(1) of the Cross-vesting Act.[54][54]HBSY Pty Ltd v Lewis (2023) 298 FCR 303 at 317 [53].
Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ