FEDERAL COURT OF AUSTRALIA
Page v Sydney Seaplanes Pty Ltd [2020] FCA 537
File number: NSD 2138 of 2019 Judge: GRIFFITHS J Date of judgment: 24 April 2020 Catchwords: HIGH COURT AND FEDERAL COURT – jurisdiction of Federal Court – application concerning death of applicant’s daughter during intra-state seaplane flight –claim for damages pursuant to ss 28, 31 and 25 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) “as incorporated by” s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – whether federal jurisdiction arises in respect of a claim for damages relating to an intra-state flight – application dismissed for want of jurisdiction Legislation: Constitution, ss 75, 76, 77
Civil Aviation (Carriers’ Liability) Act 1959 (Cth), ss 26, 27, 28, 31 and 35
Civil Aviation (Carriers’ Liability) Act 1967 (NSW), ss 4, 5, 6A
Federal Court of Australia Act 1976 (Cth), s 19
Judiciary Act 1903 (Cth), ss 38, 39, 39B
Cases cited: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38; 161 CLR 543
Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572; 104 FCR 564
Parkes Shires Council v South West Helicopters Pty Ltd [2019] HCA 14; 367 ALR 1
Qantas Airways Ltd v Lustig [2015] FCA 253; 228 FCR 148
Rana v Google Inc [2017] FCAFC 156; 254 FCR 1
Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511
Rivera v Australian Broadcasting Corporation [2005] FCA 661; 144 FCR 334
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; 327 FLR 110
Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; 154 CLR 261
Date of hearing: Determined on the papers Date of last submissions: 3 April 2020 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr R McIlwaine SC Solicitor for the Applicant: Shine Lawyers Counsel for the Respondent: Mr D A Lloyd Solicitor for the Respondent: GSG Legal ORDERS
NSD 2138 of 2019 BETWEEN: ALEXANDER MATHEW BRODIE PAGE
Applicant
AND: SYDNEY SEAPLANES PTY LTD (ACN 112 379 629)
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
24 APRIL 2020
THE COURT ORDERS THAT:
1.The amended originating application is dismissed for want of jurisdiction.
2.The applicant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
In his foreword to Professor Geoffrey Lindell’s book, Cowen and Zines’s Federal Jurisdiction in Australia (4th Edition, The Federation Press, 2016), Sir Anthony Mason described how “[t]he very mention of “federal jurisdiction” is enough to strike terror in the hearts and minds of Australian lawyers who do not fully understand arcane mysteries”. This case well illustrates that point.
For the following reasons, the Court does not have jurisdiction to entertain…
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- Case
- [2020] FCA 537
- Decision Date
CaseChat Overview and Summary
The Court held that the Federal Court did not have jurisdiction over the claim because the flight in question was intra-state and thus not covered by the federal Act. The Court further reasoned that the applicant's attempt to argue that the claim arose directly under federal law was a colourable attempt to create federal jurisdiction. The Court also noted that the NSW legislation incorporated federal provisions in such a way that they were administered and enforced as if they were Commonwealth laws, but this did not extend the Court's jurisdiction to intra-state matters. The Court's reasoning was based on the interpretation of the relevant statutes and the limitations imposed by the Constitution on the jurisdiction of federal courts.
The Court dismissed the amended originating application for want of jurisdiction. It also ordered that the applicant pay the respondent's costs, as agreed or taxed, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The amended originating application is dismissed for want of jurisdiction.
2. The applicant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I respectfully agree with the observations concerning s 6A of both Basten JA and Leeming JA which are set out above. Although Leeming JA was in dissent in Stephenson and the High Court dismissed an appeal from that decision in South West Helicopters, nothing said by the High Court casts any doubt on the correctness of Leeming JA’s observations at [270] in Stephenson regarding the nature and effect of s 6A. Although there is no reference to s 6A in the plurality’s reasons in South West Helicopters, Gordon J described at [52] how s 6A of the NSW CACL Act operated so that the applied provisions “are administered and enforced as if they were provisions applying as laws of the Commonwealth instead of as laws of the State”. This is also evident from the text of s 6A itself.Consideration and determination The Federal Court was created by the Federal Court of Australia Act 1976 (Cth) (FCA Act). The Court’s original jurisdiction is described in s 19 as being “such original jurisdiction as is vested in it by laws made by the Parliament”, being jurisdiction in respect of matters arising under laws made by the Parliament. As Professor Lindell states in Federal Jurisdiction in Australia at p.158, despite its original conception as a specialist court with limited jurisdiction, the Federal Court has been transformed into a court of general federal civil law. This is the result of various legislative changes, the most significant of which occurred in 1997 when s 39B of the Judiciary Act 1903 (Cth) was amended by adding the following provision:(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:(a)in which the Commonwealth is seeking an injunction or a declaration; or(b) arising under the Constitution, or involving its interpretation; or(c)arising under any laws made by the Parliament. In 1999, s 39B(1A)(c) was qualified by adding “other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. The concept of “matters” is central to a proper understanding of federal jurisdiction. The terms “matter” or “matters” appear in ss 75 and 76 of the Constitution, which deal with the original jurisdiction of the High Court, as well as s 77 regarding the power to define jurisdiction. The term “matters” also appears in various relevant provisions of the Judiciary Act 1903 (Cth), including in ss 38 and 39. Section 39(2) invests State Courts with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to various exceptions and restrictions. In a revised version of an informative paper delivered in September 2002 to the NSW Bar Association, Allsop J (as his Honour then was) described the word “matter” as “basal to an understanding in federal jurisdiction” (see Allsop J, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002”, (2002) 23 Australian Bar Review 29). He said at paragraph 32 (footnotes omitted):The ‘matter’ is the justiciable controversy between the actors to it comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or amongst them. It is not the cause of action or the causes of action brought by the plaintiff. A justiciable controversy is identifiable independently of proceedings brought for its determination. It is not characterised by the form of the proceedings. It is the whole controversy in respect of which it is the function of the court (State or federal) exercising the judicial power of the Commonwealth to quell. It is the ‘subject matter for determination in a legal proceeding’. The best known limitation is that it does not include advisory opinions. This limitation arises from the Constitutional purpose of courts exercising of the judicial power of the Commonwealth in Ch III: to quell controversies, not to answer hypothetical questions or questions for advice put to them whether by private parties, the Parliament or the Executive. Accepting this limitation, it is essential to appreciate the width of the notion.