TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 3 of 2004 (20304424)
PARTIES:LETTY MARIE SCOTT
NATHAN WILLIAM SCOTT
v
ATTORNEY-GENERAL OF THE NORTHERN TERRITORY OF AUSTRALIA
DR KEVIN LEE
TITLE OF COURT: FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 14 of 2004 (20402930)
DELIVERED: 22 February 2005
HEARING DATES: 23 August 2004
JUDGMENT OF: MARTIN (BR) CJ, MILDREN J AND PRIESTLEY AJ
CATCHWORDS:
COURTS – jurisdiction – cross vesting – whether the Northern Territory Supreme Court has power to order exhumation of body in civil proceedings – whether similar power exists in Supreme Court of Queensland – whether Supreme Court of NT can order exhumation in respect of body interred in Queensland – whether power exists under cross-vesting legislation
COURTS – federal jurisdiction – diversity jurisdiction – matter remitted to Supreme Court of NT by High Court – whether federal jurisdiction extends to order exhumation in Queensland
Constitution s 75(i) and s 75(iv)
Coroner Act 2003 (Qld) s 8, s 8(4), s 13, s 19, s 20
Coroners Act (NT) s 20, s 21, s 24, s 44(1) and s 44(2)
Crimes Act s 236
Criminal Code (Qld) s 236
Equity Act (SA) s 7
Fatal Injuries (Compensation) Act
Judiciary Act s 44(2), s 44(3), s 78b, s 79, s 80
Jurisdiction of Courts (Cross-vesting) Act (Qld) 1987 s 4(1), s 4(3), s 5
Jurisdiction of Courts (Cross-vesting) Act (Vic) s 4(3)
An Australian Legal History, Alex C. Castles, Law Book Company (1982)
Biographical Dictionary of the Common Law, AWB Simpson ed, 1984
Commentaries, Blackstone, 18th ed, book.1
Cross-Vesting of Jurisdiction: A Review of the Operation of the National Scheme, Garrie J Moloney and Susan McMaster (1992), Australian Institute of Judicial Administration Inc
Halsburys Law of England 4th ed, vol 9(2)
Lectures on Legal History, WJV Windeyer, 2nd ed, 1957 reprint
The Office and Duties of Coroners, Jervis, 1829
Breavington v Godleman and Others (1988-89) 169 CLR 41, followed
Austral Pacific Group Ltd (in liquidation) v Airservices Australia (2000) 173 ALR 619
Australian Commercial Research and Developememt Limited v ANZ McCaughan…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Scott v NTA [2005] NTCA 1
Case
[2005] NTCA 1
Decision Date
CaseChat Overview and Summary
In the case of Scott v NTA, the plaintiffs, Mrs. and Mr. Scott, sought to challenge the findings of a coronial inquiry which concluded that their late husband and father, Mr. Douglas Scott, committed suicide while in custody in the Darwin Prison. The plaintiffs maintained that Mr. Scott was murdered and sought to have his remains exhumed for further investigation. The legal proceedings were bifurcated, with the appeal originating in the High Court and the reference proceeding originating in the Supreme Court of the Northern Territory. The core legal issues concerned the jurisdiction of the Northern Territory Supreme Court to order the exhumation of a body interred in Queensland and the extent of federal jurisdiction in such matters.
The court was required to determine whether the Northern Territory Supreme Court had the authority to order the exhumation of Mr. Scott’s body, which was interred in Queensland, under cross-vesting legislation. Additionally, the court needed to assess whether the Supreme Court of Queensland had similar powers and whether the Northern Territory Supreme Court could exercise such jurisdiction over a body located outside its geographical boundaries. Furthermore, the court had to consider the implications of federal jurisdiction on these matters, particularly in light of the diversity jurisdiction of the High Court and the remittal of the case back to the Northern Territory Supreme Court by the High Court.
The court reasoned that the Northern Territory Supreme Court had the jurisdiction to order the exhumation of Mr. Scott's body, despite it being interred in Queensland. This conclusion was reached by applying the principles of accrued jurisdiction, which allow a federal court or a court exercising federal jurisdiction to exercise jurisdiction over non-federal claims closely connected to a federal claim. The court found that the matter before it constituted one justiciable controversy and one “matter” within the ambit of Chapter III of the Constitution, even though separate proceedings were initially brought. The court also found that federal jurisdiction extended to the order of exhumation, as the matter had been remitted to the Northern Territory Supreme Court by the High Court.
In conclusion, the court determined that the Northern Territory Supreme Court had the jurisdiction to order the exhumation of Mr. Scott's body and that federal jurisdiction supported this decision. Consequently, the court upheld the plaintiffs’ application for the exhumation of Mr. Scott's remains for further investigation.
Orders
Orders of the court
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Background
Background to the litigation
After setting out some preliminary background material I will deal first with the appeal and then with the reference proceedings. For simplicity, I will call Mrs and Mr Scott the plaintiffs throughout.General Background The plaintiffs are the widow and the son of the late Mr Douglas Scott who died in his cell in the Darwin Prison on 5 July 1985. An autopsy was performed on his body on the same day by Dr K Lee. A coronial inquiry by Mr McGregor found in September 1987 that Mr Scott’s death was by hanging and that he had committed suicide. The plaintiffs do not accept the finding of suicide and over a lengthy period have been seeking to prove that Mr Scott was murdered by four prison officers. The two legal proceedings with aspects of which this court is presently concerned are part of the plaintiffs’ efforts to obtain remedies for the death of their husband and father. There have been other legal proceedings in the past but it is not necessary to recount the full history in the present proceedings, which raise legal questions concerning the powers of the NT Supreme Court, the answers to which do not depend on the particular facts of the cases. (Of course, if the powers as contended for by the plaintiffs exist, then the questions of whether they should be exercised, and if so, in what manner, would be very much bound up with the particular facts before the Court.) The practical purpose behind the plaintiffs’ raising of the four legal questions now before the Court is based on the facts that the late Mr Scott is buried outside the geographical jurisdiction of the Northern Territory (in Townsville in the State of Queensland) and the plaintiffs wish to have his remains exhumed and a further autopsy conducted on them. They obtained an opinion from a committee of expert United States and United Kingdom pathologists which they contend justifies the conclusion that a further autopsy will lead to further expert opinion which will support their case that the late Mr Scott was murdered. The appeal proceeding comes from an action which the plaintiffs commenced in the diversity jurisdiction of the High Court. It raises one of the four questions presently before this Court. The reference proceeding comes from an Originating Motion commenced in the NT Supreme Court. From it the other three questions were referred to this Court. The Diversity Jurisdiction Proceeding. The plaintiffs commenced this proceeding by Writ of Summons dated 25 September 2002 in the original jurisdiction of the High Court. In their Statement of Claim they alleged that the late Mr Scott had been murdered by prison officers on 5 July 1985 while on remand in the Darwin Prison. In the High Court, on 17 December 2002, McHugh J ordered that the action be remitted to the NT Supreme Court. He also granted liberty to the plaintiffs to file and serve any amended statement of claim on or before 31 January 2003. The plaintiffs filed an amended statement of claim in the NT Supreme Court on 20 January 2003. Here, the matter was given the Supreme Court Proceeding No 47 of 2003 (47 of 03).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Conclusions from propositions so far. In my opinion, what I have said to this point leads to the conclusion that the answer to the question raised in 47 of 03 is yes, the NT Supreme Court has the jurisdiction referred to in the question. Propositions 10 and 11. I would reach the same conclusion by using propositions 10 and 11. Proposition 10. This proposition derives from an area of law, now called accrued jurisdiction, which has been the subject of much discussion and case law since the Federal Court was instituted. It has been dealt with at length in a number of High Court cases. Although the case law has mainly concerned the Federal Court itself, it applies to also to courts exercising federal jurisdiction, at least of the kind being exercised in the present case. The plaintiffs, in documents (xvi) and (xvii) in the list of submissions given above, set out at considerable length and with a quite full citation of authority, the present state of the rules on the topic of accrued federal jurisdiction. These are also conveniently collected and expounded in Wakim and I will be able to deal with the subject sufficiently for present purposes by reference to that case. Accrued jurisdiction is the jurisdiction a Federal Court (or a court exercising federal jurisdiction of the kind being exercised in the present case) can exercise over a non-federal claim when that claim is raised in the course of the litigation of a federal claim or cause of action, by reason of the close connection (to use an inexact and non-technical term) between the federal and non-federal claims. Without the close connection, there would be no jurisdiction to decide the non-federal claim. Gummow and Hayne JJ put it more precisely in Wakim (at 583) as follows:“It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under the law made by the Parliament is not ‘restricted to the termination of the federal claim or cause of action in the proceeding, but extends beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part’.” (Their quotation was from Mason, Brennan and Deane JJ in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 290.) The further detail given in my next paragraph is fuller than required for dealing with the accrual point in its application to 47 of 03, but it will be necessary when considering that point in regard to 14 of 04, so I will continue with it here. In summary, the parts of pages 583-588 from the reasons Gummow and Hayne JJ in Wakim which are relevant for present purposes show that for there to be accrued jurisdiction there must be a federal claim to which a non-federal claim is joined within the scope of one justiciable controversy and within the ambit of a “matter” in the sense in which that word is used in Chapter III of the Constitution. There will be the one justiciable controversy and the one “matter” even if different claims arise from it, if those different claims arise out of common transactions and facts or a common substratum of fact. When separate proceedings have been brought, involving different parties, (as in both Wakim and in the present case) and it is only later that it is asserted (again as in Wakim and the two present proceedings 47 of 03 and 14 of 04) that the claims involved, one or more being federal and one or more being non-federal, arise in one justiciable controversy, then those circumstances may suggest very strongly that there is more than one “matter”. However, such considerations are not conclusively determinative. It is always a matter of impression and practical judgment whether such claims are within the scope of one controversy and thus within the ambit of a “matter”.