Rochford v Dayes

[1989] HCA 17

HIGH COURT OF AUSTRALIA

Gaudron J.

DENNIS ANTHONY ROCHFORD v. EDWARD DAYES AND ORS

6 March 1989

Decision

GAUDRON J. This is an application by the third defendant, a corporation known as North Queensland Bacon Company Pty. Limited, for an order, inter alia, that the Writ of Summons, or alternatively, service of the Writ of Summons against it, be set aside. In the proceedings as they are presently constituted, the other parties are natural persons. I have previously held that the plaintiff is a resident of New South Wales. The first and second defendants are respectively residents of Queensland and Western Australia.

2. By his Statement of Claim the plaintiff asserts that this Court has jurisdiction by reason that:
"the action is ... a 'matter between residents of
different States' with the Third Defendant properly joined in the action by the authority of: (i) the ambit of the 'matter'; (ii) Section 32 of the Judiciary Act 1903; and (iii) Rules 4(2)(c), 7 and 10 of Order 16 of the

High Court Rules."

3. Section 75(iv) of the Constitution confers original jurisdiction on this Court in, inter alia, matters "between residents of different States". The word "residents" as used in s.75(iv) has been held to refer only to natural persons: Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 CLR 290; Cox v. Journeaux (1934) 52 CLR 282; Crouch v. Commissioner for Railways (Q.) (1985) 159 CLR 22. See also Union Steamship Co. of New Zealand Ltd. v. Ferguson (1969) 119 CLR 191, at p 196.

4. In Cox v. Journeaux, Dixon PJ., at first instance, held that the presence of a corporation on the record had the effect of denying to a proceeding otherwise between residents of different States the character of a matter "between residents of different States" as those words are used in s.75(iv) of the Constitution. To the same effect is the decision of Menzies PJ. referred to in the judgment of Windeyer PJ. at first instance in Union Steamship Co. of New Zealand (at p 196). The plaintiff contends that this aspect of s.75(iv) was not raised on appeal in Cox v. Journeaux and that the decision of Dixon PJ. in that case and the decision of Menzies PJ. in Union Steamship Co. of New Zealand are not supported by any decision of the Full Court. The plaintiff further submits that this aspect of those decisions must now yield to the more recent authority of Philip Morris Inc. v. Adam P Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457, at p 507, Fencott v. Muller (1983) 152 CLR 570, at p 603, and Crouch involving an exposition of the meaning of "matters" in s.75 of the Constitution and the jurisdiction thereby conferred on this Court. See also McCauley v. Hamilton Island Enterprises Pty. Ltd. (1986) 61 ALJR 235; 69 ALR 270. I am asked by the plaintiff to rule accordingly and to dismiss the present application. It should be noted that the plaintiff and the defendants expressly declined to have the constitutional issues raised by this application referred to a Full Court for decision.

5. Even if it be correct to say that the question of the joinder of a corporation in proceedings otherwise between residents of different States was not in issue in the appeal in Cox v. Journeaux, I think the arguments advanced on behalf of the plaintiff must fail. The issue raised in the present case is whether the preposition "between" in the expression "between residents of different States" in s.75(iv) signifies a necessary distribution of parties on opposite sides of the record or whether it signifies the necessary and only permitted distribution of parties. Either meaning, but no other, is, I think, fairly open as a matter of ordinary language. The first meaning was unanimously rejected in Watson and Godfrey v. Cameron (1928) 40 CLR 446. It is sufficient to refer to the words of Higgins PJ. in that case (at pp 448-449):

"The argument for the plaintiffs is that we should read the constitutional provision as if it merely purported to give the High Court jurisdiction where there is some distribution of parties as between different States. But that ignores the full force of the word 'between' in sec.75. The action must be 'between' residents of different States and, in my opinion, the plaintiff or plaintiffs must be resident in one State and the defendant or defendants must be resident in another State."

The decision in Watson and Godfrey was accepted as correct by Gibbs PA.C.J. (with whom Stephen, Jacobs, Murphy and Aickin JJ. agreed) in In re Anderson; Ex parte Bateman (1978) 53 ALJR 165, at p 166; 21 ALR 56, at p 58.

6. The reasoning in Watson and Godfrey may not be compelling, particularly in light of the statement in the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ. in Crouch (at p 37) in relation to the other categories of jurisdiction conferred by s.75(iv) that "a matter '(b)etween States' or ... a matter 'between a State and a resident of another State' falls to be determined by reference to the substantial subject matter of the controversy and not by reference only to the form in which the legal proceedings involving it happen to be framed." However, their Honours there made no mention of matters "between residents of different States", and the meaning of those words has been determined by authority which I am bound to apply and which compels a conclusion that the proceedings as presently constituted are not a matter "between residents of different States".

7. The proceedings as presently constituted not being a matter "between residents of different States" the appropriate order is, as in Cox v. Journeaux, that the suit be dismissed unless the plaintiff, within twenty one days, by notice filed in the Registry and served upon the defendants elects to proceed only against the first and second defendants. Costs will be reserved; a certificate will issue for the attendance of counsel. The order may be settled in the Registry.