Kelly v Crosby & Ors

[2013] HCATrans 17

[2013] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra   No C4 of 2012

B e t w e e n -

MICHAEL KELLY

Applicant

and

LYNTON CROSBY

First Respondent

MARK TEXTOR

Second Respondent

ATTORNEY‑GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

ATTORNEY‑GENERAL NORTHERN TERRITORY

Fourth Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Fifth Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 FEBRUARY 2013, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear for the applicant, with my learned friend, MS G.R. RUBAGOTTI.  (instructed by Zone Legal)

MS G.C. DEMPSEY:   May it please the Court, I appear for the first and second respondents, with my learned friend, MR G.J. WATSON.  (instructed by Colquhoun Murphy)

MR P.J.F. GARRISSON, Solicitor‑General for the Australian Capital Territory:   If it please, your Honour, I appear for the Attorney‑General, for the third respondent, with my learned friend, MS K.M. RICHARDSON.  (instructed by ACT Government Solicitor)

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear with MS K.M. RICHARDSON, for the fourth respondent, your Honours.  (instructed by Solicitor for the Northern Territory)

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friend, MR G.M. AITKEN, for the fifth respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you.  Yes, Mr McClintock.

MR McCLINTOCK:   Your Honours, it seems to have been common ground below, and is essentially common ground here, that the only possible support for the constitutional validity of section 9(3) of the Commonwealth Cross‑vesting Act is section 76(ii) of the Constitution. That is, as the Full Court found below, that section, section 9(3), was a matter arising under law made by Parliament.

CRENNAN J:   Mr McClintock, if I may, looking at paragraph 35 of your first set of written submissions in relation to 76(ii) ‑ do you have that Mr McClintock?  I have read that as an acceptance that GPAO and Spinks v Prentice to the extent that it follows GPAO are not in any sense challenged by these submissions.

MR McCLINTOCK:   Your Honour, we do not challenge GPAO, Ruhani or Spinks v Prentice.  What we do is we seek to distinguish them.  There is a concession in that paragraph ‑ ‑ ‑

HAYNE J:   I am sorry, if you go back to the proposition you started from, that 9(2) ‑ ‑ ‑

MR McCLINTOCK: Section 9(3), your Honour. The proposition ‑ ‑ ‑

HAYNE J:   Section 122 does not walk across the stage at all?

MR McCLINTOCK:   In our submission, in fact no, your Honour.  I can understand the ultimate relevance of section 122.  But could I take your Honours to first the legislation, and before I do could I just say this about paragraph 35?  There is a concession in there that we in our reply submissions consider went too far and insofar as it goes too far we withdraw it in those submissions.  The question is whether, in the absence of an exercise of power under section 122 the legislature can vest jurisdiction in the Federal Court in non‑federal ACT matters.  But, your Honours, we do not challenge – and that was a question specifically reserved in GPAO, in the judgment of the Chief Justice and Justice Gummow in that case.

Could I take your Honours to the relevant provisions of the legislation?  The first is the ACT Cross‑vesting Act, which appears behind tab 8 in the bundle of authorities, and there are two references I would wish to take your Honours to there.  The first is in the dictionary, which appears at the back of the Act and it is the definition there of the words ACT matter.  Your Honours will see that ACT matter is defined to mean:

(a)in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State ‑

and that is the jurisdictional meaning that is picked up ultimately by section 4(1) of this legislation. Could I take your Honour then to section 4(1) of the ACT Act which says:

The Federal Court has and may exercise original and appellate jurisdiction in respect of ACT matters.

That is an attempt to vest the Federal Court by the ACT legislature with jurisdiction obviously in respect of non‑federal matters.  That is, those that do not arise as the definition of ACT matter says under a law of the Parliament.  Your Honours, we submit, and I shall expand upon this later, that this provision is ineffectual in any sense and probably invalid to vest jurisdiction in the Federal Court.

The first reason ultimately which I will come to is that, as Wakim establishes, the only polity that can vest jurisdiction in the Federal Court is the Commonwealth Parliament and this is a piece of legislation of the ACT legislature. Second, it is ex facie an attempt to give jurisdiction in relation to matters that do not fall within section 76(ii) of the Constitution, as it says from the definition of ACT matter. Could I then take your Honours to the Commonwealth legislation, the Jurisdiction of Courts (Cross‑vesting) Act, which appears behind tab 9 of the bundle of authorities?

The first point I would wish to make, your Honours, is just briefly say this so it is understood, is to point to the definitions in the Cross‑vesting Act because in some ways they might appear surprising.  The definitions are those which appear in section 3 and it is the definition of State and Territory.  Your Honours will see that State is defined to include “the Australian Capital Territory and the Northern Territory”.  Then Territory itself:

Territory does not include the Australian Capital Territory or the Northern Territory.

So presumably Territory there is referring to the external territories.  Could I then take your Honours to section 9 itself, and your Honours will see that it is headed “Exercise of jurisdiction pursuant to cross‑vesting laws”.  Subsection (1) provides:

Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross‑vesting of jurisdiction.

State laws are thereby preserved, and in a sense, this legislation is made subordinate to such laws.  Of course, State there includes Territory and relevantly the ACT.  Subsection (2) does not affect the matter.  Subsection (3) says this:

The Federal Court or the Family Court may:

(a)exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and

(b)hear and determine a proceeding transferred to that court under such a provision.

In our submissions we have put an argument about the construction of that point, and we put that it is limited to giving jurisdiction matters actually cross‑vested.

FRENCH CJ:   You mean actually transferred?

MR McCLINTOCK:   Actually transferred.  Putting that argument aside and assuming for the purposes of this segment of my argument that it is wrong, it means that the focus here is only on the words that appear in subsection 9(3)(a) because, of course, this matter was not transferred from any court to the Federal Court.  It was commenced purportedly in the court’s original jurisdiction.  So the words in question are:

The Federal Court . . . may:

(a)      exercise jurisdiction . . . conferred on that court –

and then it says “by a provision of this Act” ‑ there is no provision of this Act relevant –

or of a law of the Australian Capital Territory . . . relating to cross‑vesting of jurisdiction –

It is those words, “may exercise jurisdiction . . . conferred on that court” by a law of the ACT “relating to cross‑vesting of jurisdiction”.  Could I take your Honours then and come to ‑ ‑ ‑

CRENNAN J:   Why should not that be construed, taking guidance from Wakim, that seen in context that provision confers general jurisdiction?

MR McCLINTOCK:   If that provision stood alone, and if it was not followed by subsection (b), that would be the only way of construing it, your Honour. I would accept that. I am going to come back to the argument of construction, but I would like to come to grips immediately with the basis upon which the Full Court found against my client, which involves a construction of the meaning of section 9(3) that we say was incorrect.

Your Honours, the particular passages of their Honours’ judgment – and what their Honours did, before I take your Honours to the judgment, is they thought that this section itself did not merely vest jurisdiction in the Federal Court, but that it actually ..... rights, and therefore was supportable as a Territory law, and therefore fitted the description of a law under section 76(ii). In my submission ‑ ‑ ‑

CRENNAN J:   Again, in reliance on Wakim.

MR McCLINTOCK:   Well, that is what their Honours said, but when it comes to the actual – when I take your Honours to the authorities on this, and in particular Ruhani, your Honours will see that they stand for the proposition that a simple vesting of jurisdiction in a court does not give rise to a matter arising under a law made by Parliament, and I will take your Honours to the relevant passages.  There is a distinction ‑ ‑ ‑

FRENCH CJ: What do you say is wrong with the statement in the judgment of Justice Perram beginning with the words, “In effect, s 9(3)”?

MR McCLINTOCK:   That is in paragraph 2 of his ‑ ‑ ‑

FRENCH CJ:   Page 9 on the ‑ ‑ ‑

MR McCLINTOCK:   Yes.  Your Honour, what we say there is that that is not a permissible construction of section 9 itself and, in any event, even if it were it would not be sufficient to make it a matter arising under a law made by Parliament.

FRENCH CJ:   Well, if it is a law made pursuant to the power conferred on the Parliament by section 122 it is a law made by the Parliament.

MR McCLINTOCK:   I accept that.  If there is power to make the law under section 122 I accept, as GPAO means I must accept, that that relevantly can found federal jurisdiction.

FRENCH CJ:   As Dr Stellios says, triggers the jurisdiction.

MR McCLINTOCK: But the point here though is this; the focus is on the word “matter” in section 76(ii) of the Constitution, not on the word “law”, and the point is that on the authorities decided by this Court a mere vesting of jurisdiction in the Federal Court does not give rise to a matter arising under that law, and that is the vice that ‑ ‑ ‑

HAYNE J:   What does it do if it does not do that?

MR McCLINTOCK:   It is simply an attempt to vest jurisdiction.  Your Honour, for it to be a matter arising under a law it must be something, as Sir John Latham said ‑ and the name of the case escapes me, Barrett, I think ‑ which owes its existence to the fact of the law. Here the premise of section 9(3) is that there is ‑ ‑ ‑

HAYNE J:   There has been a little development since then, has there not, LNC?

MR McCLINTOCK: There has, your Honour. But, all the same, the propositions – and again I will take your Honours to the authorities – the propositions are good ones, we would say. The fact is that here we are dealing with a common law claim or a claim arising under the ACT Wrongs Act; that claim exists completely independently of section 9(3) of the Jurisdiction of Courts (Cross‑vesting) Act.  That legislation does not create that cause of action, it was brought into existence by the common law or perhaps by the ACT Wrongs Act.  It is that legislation that creates it.  Therefore, it does violence to the words a “matter . . . arising under any laws made by the Parliament” to say that a law that purports to vest jurisdiction in a court gives rise to the matter.

HAYNE J:   Well, let it be assumed that there is a provision of federal law which says the Federal Court shall have jurisdiction in claims for negligence against the Commonwealth.

MR McCLINTOCK:   Against the Commonwealth?

HAYNE J:   Yes.

MR McCLINTOCK: That would fall within other provisions of the Constitution in claims against the Commonwealth but, your Honour, there in my submission that would not be a matter arising under section 76(ii). Could I take your Honours to the passages in – I first should take your Honours to the provisions in the judgment of Justice Robertson and the relevant passages appear on pages 18 and 19 of the application book in paragraphs 35 and 39 of his Honour’s judgment. It is the last sentence of paragraph 35, and there is a couple of things I would wish to point out in this and the succeeding paragraph. The last sentence says:

That provision –

being 9(3) –

is a law made by the Parliament within s 76(ii) of the Constitution. It picks up, as Commonwealth law, the jurisdiction of the Australian Capital Territory Supreme Court to hear and determine the present dispute –

His Honour there is focusing on the words “jurisdiction”, but then over the page on page 18 in paragraph 39 he says at the end of the paragraph in the last sentence:

This is because s 9(3), in my opinion, both confers jurisdiction and creates rights arising under that provision. Those rights have the force of laws of the Commonwealth in respect of which a matter may arise.

Your Honours, what we join issue with there is this, it is the use of the phrase “creates rights”. Section 9(3) does not create rights; it simply gives jurisdiction to the Federal Court. No substantive right is created by that provision and, if that is right, on the authorities it would mean that section 9(3) does not give rise to a matter arising under a law made by Parliament.

Could I take your Honours to Ruhani which is contained in our list of authorities – no, I am sorry, it is in the first respondent’s list of authorities, your Honours.  The particular reference is – there are two references I would wish to give your Honours.  The first is in the judgment of your Honour Justice Hayne and Justice Gummow, which is paragraph 103 on page 527.  In paragraph 103 – and this, in my submission, supports our argument:

Section 76(ii) of the Constitution requires more than a bare conferral of jurisdiction; there must be revealed a substantive law under which there arise the matters the subject of the conferral of jurisdiction.  The appellant submits that s 5(2) and 5(3), stating respectively that this Court has jurisdiction to hear and determine the appeals mentioned –

and so on – I do not think I need read any further. It is the first sentence. It has got to be more than a bare conferral of jurisdiction and, in my submission, your Honour, section 9(3) is plainly a bare conferral of jurisdiction and therefore does not give rise to a matter. That is confirmed by what Justice McHugh said in the same case at pages 512 to 513 where in paragraph 55 he discusses the meaning of the word “matter” and where he says:

A proceeding is not itself a “matter” for constitutional purposes.

A statement that we would see as wholly consistent with what your Honour Justice Hayne and Justice Gummow said in the passage to which I have already taken your Honours.  His Honour continues there with the definition of the words – to consider the words “matter” and quote from Abebe there.  He says at the top of the page:

(If the mere creation of a proceeding could give rise to a “matter . . . arising under” the relevant Act, there would be no work for s 76(ii) to do. The law conferring the jurisdiction would be the law under which the “matter” would arise –

suggesting clearly and implicitly that it has to be more than what this section here does. Your Honours, there is a conundrum lying in these two sections of the ACT law and the Commonwealth law, and it is this; the ACT law purports to confer jurisdiction on the Federal Court in relation to non‑federal matters but, on the construction of section 9(3) by the Federal Court, it of itself gives rise to a federal matter which means that in that sense, while section 9(3) refers specifically to the ACT legislation and the jurisdiction conferred by it, it means that in effect that section would have no work to do and it is like a dog chasing its tail, we would submit.

FRENCH CJ:   Sorry, which section would have no work to do?

MR McCLINTOCK: Section 4(1). Their Honours found that section 9(3) gives rise to a matter, but with great respect to their Honours, it does not. It simply vests jurisdiction. Here, the plaintiffs in this proceeding could have sued just as easily in the ACT Supreme Court. This matter owes nothing to Commonwealth law. The pleadings, and as was accepted below, there was – because of the history that is set out on the side of Justice Robertson’s judgment – there is no federal element involved in the matter at all, none. It is just a simple common or garden ACT defamation claim relying upon the fact that some small proportion of the publications of the matter complained of were made in the Australian Capital Territory. In my submission, your Honour, there is a strongly arguable case that section 9(3) is invalid.

The other point – I am coming towards the end of my time. I would have wished to expand more upon what I wanted to say about section 4(1) of the ACT Act, but it is, in my submission, invalid for two substantial reasons. Wakim says the only entity polity that can grant jurisdiction is the Commonwealth Parliament. This is a law of the ACT, therefore, it must be invalid. Section 9(3) depends upon its validity, therefore, it too is invalid.

CRENNAN J: And if 9(3) confers general jurisdiction, section 4(1) identifies that jurisdiction.

MR McCLINTOCK:   Yes, but there the words of section 9(3) are “may exercise jurisdiction” in matters where jurisdiction has been conferred by. The premise is that there has already been a valid conferral of jurisdiction by the ACT legislature. There are other reasons why we would submit that this legislative scheme does not found jurisdiction in this matter, your Honours, but they are set out in our written submissions in reply, and as I see, I have come to the end of my time. Those are my submissions.

FRENCH CJ:   Thank you, Mr McClintock.  Yes, we will not need to trouble the respondents. 

The applicant is the defendant in defamation proceedings commenced in the registry of the Federal Court in the Australian Capital Territory.  He seeks special leave to appeal against the decision of the Full Court of the Federal Court dismissing his objection to the competency of that court on the ground that it did not have jurisdiction to hear the claim. 

In our opinion, the reasoning of the Full Court of the Federal Court was correct in identifying the source of jurisdiction as section 9(3) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) read with section 4(1) of the Jurisdiction of Courts (Cross‑vesting) Act 1993 (ACT). The reasoning of the Court was consistent with that of this Court in Northern Territory v GPAO and in Ruhani v Director of Police.

The application for special leave will be dismissed with costs.

AT 9.53 AM THE MATTER WAS CONCLUDED