O'Neill v Mann

Case [2000] FCA 1180

FEDERAL COURT OF AUSTRALIA

O'Neill v Mann [2000] FCA 1180

CONSTITUTIONAL LAW - original jurisdiction of the Federal Court of Australia - common law matters in the Australian Capital Territory - defamation proceeding cross-vested from ACT Supreme Court to Federal Court - motion to have proceeding permanently stayed for want of jurisdiction - whether Cross-Vesting (Jurisdiction of Courts) Act 1987 (Cth) invalid to extent it purports to invest Federal Court with jurisdiction to entertain defamation action - Chapter III of the Constitution - Re Wakim;  Ex parte McNally (1999) 163 ALR 270.

COURTS AND JUDICIAL SYSTEM - Federal Court of Australia - original jurisdiction - jurisdiction to entertain common law matters arising in the ACT - s 122 of the Constitution.

WORDS AND PHRASES - "matter", "arising under".

Constitution, s 51, s 76(ii), s 77(i), s 122

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4, s 4(2), s 4(3), s 5, s 5(1), s 6(1), s 9, s 9(2)
Judiciary Act 1903 (Cth), s 30B, s 39B, s 39B(1A)(c), s 78B
Seat of Government Acceptance Act 1909 (Cth), s 6, s 6(1)
Seat of Government (Administration) Act 1910 (Cth), s 3, s 4
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Supreme Court Act 1933 (ACT)
Law and Justice Legislation Amendment Act 1997 (Cth), Sched 12
Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sched 1 cll 61-69
Acts Interpretation Act 1901 (Cth), s 8

Federal Court Rules, O 22 r 2, O 62 r 3(3)

Re Wakim;  Ex parte McNally (1999) 163 ALR 270 referred
Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 followed
Eastman v R (2000) 172 ALR 39 discussed
O'Neill v Mann (1994) 49 FCR 370 referred
O'Neill v Mann (1994) 54 FCR 212 referred
Mann v O'Neill (1997) 191 CLR 204 quoted
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 referred
Hooper v Kirella (1999) 96 FCR 1 referred

Fencott v Muller (1982) 152 CLR 570 referred
Abebe v Commonwealth of Australia (1999) 197 CLR 510 referred
Northern Territory of Australia v GPAO (1999) 161 ALR 318 discussed
R v Commonwealth Court of Conciliation and Arbitration;  Ex parte Barrett (1945) 70 CLR 141 quoted
Kruger v Commonwealth of Australia (1997) 190 CLR 1 referred
Berwick Ltd v Gray (1976) 133 CLR 603 referred
Spinks v Prentice (1999) 163 ALR 270 referred

Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd (Full Court, Supreme Court of the Northern Territory, 6 June 2000) referred

Re Governor, Goulburn Correctional Centre, Goulburn;  Ex parte Eastman (1999) 165 ALR 171 referred
Buchanan v The Commonwealth (1913) 16 CLR 315 referred
Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 mentioned
In the Matter of an Application under the Aboriginal and Torres Strait Islander Commission Act 1989 [2000] FCA 975 referred

JAMES JOSEPH O'NEILL v ARNOLD MANN
ACT G15 of 1994, ACT G29 of 1994

FINN J
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O'Neill v Mann [2000] FCA 1180
Case
[2000] FCA 1180
Decision Date

CaseChat Overview and Summary

The case of O'Neill v Mann involves a dispute regarding the jurisdiction of the Federal Court of Australia to hear a defamation claim brought under the Cross-Vesting Act 1989. The respondent, Mann, filed a motion to dismiss the defamation claim brought by O'Neill, arguing that the Federal Court lacked original jurisdiction to hear the case. The Federal Court was required to determine whether it had the jurisdiction to hear the defamation claim, which was brought under the Cross-Vesting Act, and whether the applicable law in the ACT derived its force and effect from Commonwealth statutes. The court found that the defamation claim arose under the Seat of Government Acceptance Act 1909 and the Seat of Government (Administration) Act 1910, which gave it original jurisdiction under s 77(i) of the Constitution. The court also found that the Cross-Vesting Act provided for the enforcement of the rights and obligations of the parties to the alleged defamation in the ACT, which was a law of the Parliament under which the matter arose. The court concluded that the defamation claim arose under Commonwealth law and that the Federal Court had original jurisdiction to hear the case.

The Federal Court found that the defamation claim arose under Commonwealth law, which gave it original jurisdiction to hear the case. The court held that the applicable defamation law in the ACT was derived from the Seat of Government Acceptance Act 1909 and the Seat of Government (Administration) Act 1910, which continued the laws of New South Wales in the ACT. The court found that the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW) were continued in force in the ACT and were applicable to the defamation claim. The court also found that the Cross-Vesting Act provided for the enforcement of the rights and obligations of the parties to the alleged defamation in the ACT, which was a law of the Parliament under which the matter arose. The court concluded that the Federal Court had original jurisdiction to hear the defamation claim under s 77(i) of the Constitution.

ORDERS:
1. The motion of 26 November 1999 be dismissed.

Orders

Orders of the court

1. the motion of 26 November 1999 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J
Section 6(1) of the Seat of Government Acceptance Act 1909 provides:"6(1) Subject to this Act, all laws in force in the Territory immediately before the proclaimed day shall, as far as applicable, continue in force until other provision is made."Subject to a proviso to which it is unnecessary to refer, s 4 of the Seat of Government (Administration) Act 1910 provides:"4 Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor-General, have effect in the Territory as if it were a law of the Territory."CONCLUSIONS There are, in my view, two reasons why the motion must be dismissed. The first is that the justiciable controversy (the alleged defamation) itself arises under laws of the Commonwealth - the Seat of Government Acceptance Act 1909 and the Seat of Government (Administration) Act 1910 - and is in consequence "a matter" with respect to which this Court can be given original jurisdiction under s 77(i) of the Constitution. The second is that the Cross-Vesting Act itself, in providing for the enforcement of the rights and obligations of the parties to an alleged defamation in the ACT in the circumstances envisaged in s 5(2) of that Act, is a law of the Parliament under which the "matter" arose (albeit a law enacted under s 122 of the Constitution) and hence original jurisdiction could be conferred on the Federal Court in the same Act by virtue of s 77(i) of the Constitution in respect of that matter. My reasons for each of these conclusions are as follows.1. THE SEAT OF GOVERNMENT ACTS As Gummow J observed in Mann v O'Neill, above, at 240, of Mr O'Neill's defamation action:"The applicable defamation law was the common law, varied and supplemented by those laws of the State of New South Wales continued in the Territory, as modified in their application there by s 3 and Sch 2 of the New South Wales Acts Application Ordinance 1984 (ACT). The relevant New South Wales legislation applied in this way was the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW)."As his Honour indicated in a footnote to this observation, the common law and the laws of New South Wales were continued in the Territory pursuant to s 6 of the Seat of Government Acceptance Act 1909 and ss 3 and 4 of the Seat of Government (Administration) Act 1910. Whatever may have been the case in relation to the law that would have been in force in the ACT on surrender and acceptance on 1 January 1911 had the relevant Seat of Government Acts provisions not been enacted: see Buchanan v The Commonwealth (1913) 16 CLR 315; Kruger v Commonwealth of Australia, above, at 168-169; the result of their enactment was that the law that was then to be in force in the Territory derived its operation and effect directly from Commonwealth statutes. While both the common law and the continued New South Wales statute law could have been altered, repealed, etc by an Act passed under s 122 of the Constitution, by an Ordinance made under the Seat of Government (Administration) Act 1910 (until 1989) or by an Act of the Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) (from 1989), such of that law as was and remained applicable in defamation proceedings retained, save in one respect, its original character as law having force and effect in the ACT by virtue of the Seat of Government Acts. The saving I foreshadowed is that by the Ordinance of 1984 to which Gummow J referred, the two New South Wales Defamation Acts that were continued in force in 1911 were given effect under that Ordinance as laws of the Territory. If they thus lost their original character of being made directly applicable in the ACT by virtue of the Seat of Government Acceptance Act 1909, the Ordinance that subsumed them in 1984 nonetheless gave them like character to the extent that they owed their force and effect to the Seat of Government (Administration) Act 1910 under which the 1984 Ordinance was made. As Dixon J observed in Laristan's case at 585-586, "it is … clear that a claim to a right conferred by or under ordinances made … under s 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament".

Ratio Decidendi

Legal Principle Established

Established by: FINN J

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