Re Owen; Ex parte; Sumampow v Mercator Property Consultants Pty Ltd

The applicants, Mr Owen and Mr Sumampow, sought a writ of certiorari from the High Court of Australia to quash an order made by the Supreme Court of Western Australia. The dispute concerned the validity of certain provisions of the *Federal Courts (State Jurisdiction) Act 1999* (WA), specifically ss 6, 7, 8, and 10, which related to appeals from judgments of a single judge of the Federal Court exercising federal jurisdiction in State courts. The applicants argued that these State provisions were inconsistent with Chapter III of the Australian Constitution and the *Federal Court of Australia Act 1976* (Cth), which provides for appeals to the Full Court of the Federal Court.

The primary legal issue before the High Court was whether the impugned provisions of the Western Australian Act were invalid due to inconsistency with federal law and the Constitution. This involved determining whether the High Court had original jurisdiction to grant the writ of certiorari in these circumstances, and whether the question of the State law's validity should be removed to the High Court pursuant to s 40 of the *Judiciary Act 1903* (Cth). The applicants contended that the State law's provisions for appeals were arguably invalid, and that the High Court should intervene.

Kirby J dismissed the application for a writ of certiorari. His Honour reasoned that the High Court's original jurisdiction to grant such a writ was limited, particularly when the relief sought was not against the Commonwealth or its officers. Furthermore, the High Court had already determined the core issues regarding the validity of similar appeal provisions in previous decisions, namely *Re Macks; Ex parte Saint* and *Residual Assco Group Ltd v Spalvins*. Consequently, the applicants' argument for the invalidity of the State law, and the basis for seeking certiorari, was not sufficiently arguable to warrant the grant of the writ. The applicants were ordered to pay the costs of the second and third respondents.