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Wakim Ex parte McNally

Wakim Ex parte McNally

Case [1998] HCATrans 436 2 December 1998

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S74 of 1998

RE THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA
First Respondents
GEORGE WAKIM
Second Respondent
Ex parte –
PETER J. McNALLY and TERENCE McNALLY
Prosecutors

Office of the Registry
Sydney No S107 of 1998

RE THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA
First Respondents
GEORGE WAKIM
Second Respondent
Ex parte –
CHOLMONDELEY DARVALL QC

Prosecutor

Office of the Registry
Sydney No S118 of 1998

In the matter of –
Applications for Writs of Prohibition and Certiorari against SUSAN AGNEW, formerly a Registrar of the Federal Court of Australia
First Respondent
THE HONOURABLE BRIAN JOHN MICHAEL TAMBERLIN, A Judge of the Federal Court of Australia
Second Respondent
THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA
Third Respondents
MARTIN RUSSELL BROWN, Liquidator of Amann Aviation Pty Limited and AMANN AVIATION PTY LIMITED (IN LIQUIDATION) and BP AUSTRALIA LTD
Fourth Respondents
ROBERT OTTO AMANN & VANDA RUSSELL GOULD

Prosecutors/Applicants

Office of the Registry
Sydney No S 140 of 1998

B e t w e e n –

JOHN SPINKS, TRAVERS DUNCAN, ALLAN WELLS, GEOFFREY WHITE, WHITE CONSTRUCTIONS PTY LIMITED, WHITE INDUSTRIES AUSTRALIA LIMITED, WHITE INDUSTRIES PTY LIMITED, WHITE CONSTRUCTIONS PTY LIMITED, PDC CONSTRUCTIONS PTY LIMITED, PDC PLANT HIRE PTY LIMITED, WIL CIVIL AND MINING ENGINEERING PTY LIMITED, WHITE CONSTRUCTIONS PTY LIMITED, EXXON COAL AUSTRALIA LIMITED
Applicant
MAXWELL WILLIAM PRENTICE
Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 DECEMBER 1998, AT 10.02 AM

(Continued from 1/12/98)

GLEESON CJ: Mr Solicitor, before you proceed, could I mention that I have a certificate from the Senior Registrar saying that she has been informed by Corrs Chambers Westgarth, the solicitors for BP Australia Limited, the third‑named fourth respondent in the above matter, that is the matter of Re Brown & Ors ex Parte Amann & Anor, that BP Australia Limited does not wish to be heard in this application and submits to any order of the Court save as to costs. Yes, Mr Solicitor.

MR BENNETT: If the Court pleases. Yesterday, your Honour the Chief Justice asked me a question at page 102 of the transcript, about section 9(2)(a) of the Commonwealth Cross‑vesting Act. May I just complete a rather more precise answer to your Honour than I gave yesterday? The section provides that:

The Federal Court…..may:
(a) exercise jurisdiction…..conferred on that court by a provision of this Act or of a law of a State –

The reference to the provisions of this Act are to sections 4(2) and 4(3). Section 4(2) is a conferral of jurisdiction under section 122. Section 4(3) is intended to be a conferral of jurisdiction under such of the heads of sections 75 and 76 as are not picked up by section 39 of the Judiciary Act. In other words, if one has a matter pending in…

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.

Continue reading Wakim Ex parte McNally

Details

AGLC: Wakim Ex parte McNally [1998] HCATrans 436
Case: [1998] HCATrans 436
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *Wakim Ex parte McNally*. The applicant, Mr. Wakim, sought to challenge the validity of certain provisions of the *Migration Act 1958* (Cth) that purported to confer jurisdiction on the Federal Court of Australia to hear and determine appeals from decisions of the Refugee Review Tribunal. The respondent was the Minister for Immigration and Multicultural Affairs.

The central legal issue before the High Court was whether the Parliament of the Commonwealth had the constitutional power to invest a federal court with jurisdiction to determine appeals from decisions made by a non-judicial body, such as the Refugee Review Tribunal, which was established under federal legislation. Specifically, the Court had to determine if such a conferral of jurisdiction was consistent with Chapter III of the *Australian Constitution*, which delineates the powers and structure of the federal judicature.

The High Court held that the provisions of the *Migration Act* were invalid. The Court reasoned that Chapter III of the Constitution confines the judicial power of the Commonwealth to courts that are invested with federal jurisdiction. It further held that the Refugee Review Tribunal was not a court exercising federal jurisdiction, and therefore, the Parliament could not vest in a federal court the power to hear appeals from its decisions. This conclusion was based on the principle that federal courts can only exercise judicial power, and the power to review the decisions of a non-judicial tribunal in the manner contemplated by the *Migration Act* was not a power that could be characterised as judicial power within the meaning of Chapter III.

Consequently, the High Court made orders absolute for the writ of prohibition, preventing the Federal Court from exercising jurisdiction in the appeals.

Orders