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Lecture 2

WEEK 2 & 3 - Jurisdiction & Cross-Vesting

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Department
Law
Course
LWB431
Professor
All Professors
Semester
Spring

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Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting JURISDICTION & CROSS-VESTING Prior to the initiation of proceedings or the bringing of an appeal it is necessary to determine the appropriate court in which to commence your proceedings. Two types of jurisdiction (court must have both) 1. Territorial Jurisdiction – Refers to the persons or bodies over whom the court may exercise jurisdiction 2. Subject Matter Jurisdiction – Refers to the nature of the disputes which may be decided by the particular court 1. DOES THE COURT HAVE TERRITORIAL JURISDICTION? Territorial jurisdiction deals with the persons or bodies over whom the court may exercise jurisdiction and is also known as in personam jurisdiction. The distinction between subject matter jurisdiction and territorial jurisdiction is that subject matter jurisdiction deals with the nature of the dispute which may be decided by the court. Can be established in 3 ways: 1. defendant’s presence in the jurisdiction 2. defendant’s submission to the jurisdiction 3. statutory extensions by service [1] IS [DEFENDANT] PRESENT IN THE JURISDICTION? Presence of the defendant within the jurisdiction is the principal basis for exercising territorial jurisdiction: Laurie v Carroll. >>>If Supreme court of X State and service on defendant in X state The issue of an originating process is the exercise of jurisdiction over the defendant and the obligation of its command falls upon the defendant where the defendant is present within the jurisdiction at the time of issue of the originating process. Service must be effected to perfect the duty of obedience to the command of the originating process. >>>If defendant present in jurisdiction It will be sufficient to bring the defendant under the command of that process if, as here, the defendant is present in the jurisdiction at the time of service: Laurie v Carroll. (SEPA becomes relevant only where service is to be effected outside the State of issue) NB. Laurie v Carroll: • It does not matter if the defendant is a foreigner or subject of the Crown; • It does not matter how temporary the presence in the jurisdiction is; • It does not matter why the defendant is in the jurisdiction unless the defendant has been fraudulently enticed there to effect service; • Jurisdiction will not be lost if the defendant leaves jurisdiction after being served >>>If defendant not present in jurisdiction It will be sufficient to bring the defendant under the command of that process if the defendant is present in the jurisdiction at the time of service: Laurie v Carroll. However, [defendant] was not present at the time. 1 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting >>>If Supreme court of X State and defendant in Y state The court’s jurisdiction cannot extend to persons not in the territory unless validly extended by substituted service and the Service and Execution of Process Act 1992 (Cth): Laurie v Carroll (1958) 98 CLR 310. GOTO [3]. >>>If Supreme court of X State in Y country and defendant in Z country The court’s jurisdiction cannot extend to persons not in the country by either substituted service or the SEPA. GOTO [3]. Laurie v Carroll Facts: Carrolls were theatrical entrepreneurs in Melbourne, organised dance tour with Laurie who was theatrical agent in London. The Plaintiff issued a writ of summons out of the Supreme Court Victoria, the day after the defendant, Laurie, had left Victoria with no intention of returning. The plaintiff obtained orders which included an order giving leave to serve the writ of summons within the jurisdiction by substituted service, being service upon a nominated firm of solicitors who had acted for Laurie. Laurie applied, without entering an appearance or a conditional appearance, to discharge the ex parte order for substituted service, and service pursuant to it, and also to discharge other orders which had been made. The application was dismissed and the defendant by special leave, appealed to the HC. Held: (per Dixon, Williams & Webb JJ) @322-3: CL doctrine is that writ does not run beyond the limits of the State. @ 323: “The service of the writ, or something equivalent thereto, is absolutely essential as the foundation of the court’s jurisdiction. Where a writ cannot legally be served upon a defendant the court can exercise no jurisdiction over him. In an action in personam the converse of this statement holds good, and wherever a defendant can be legally served with a writ, there the court, on service being effected, has jurisdiction to entertain an action against him. Hence, in an action in personam, the rules as to the legal service of a writ define the limits of the court’s jurisdiction.” @ 333: Laurie neither by reason of past history / present domicile / residence / course of business stood in any general relation to the State of Victoria which would make him prima facie subject to Victorian jurisdiction. He was about to leave shortly, he merely accelerated departure due to the threat of suit. Unless brought within Supreme Court Rules or SEPA, the Supreme Court by ordering substituted service was asserting jurisdiction over a defendant which (except for accidental circumstances – his brief visit to Melbourne) it could not possess. Where a writ cannot be legally served upon a defendant, the court can exercise no legal jurisdiction over him/her. Hence Sup C of Vic had no jurisdiction in this case. [2] HAS [DEFENDANT] SUBMITTED TO THE JURISDICTION? Submission to the jurisdiction: Where the defendant voluntarily submits to the jurisdiction of the court, it is possible for that court to exercise territorial jurisdiction over that defendant. [Defendant]’s conduct must be inconsistent with the maintenance of an objection to the court’s jurisdiction. [2.1] Submission • Entering into an unconditional appearance – unconditional entering of a Notice of Intention to Defend (NOITD), which indicates that the defendant intends to defend the matter constitutes a submission to the jurisdiction: r 144(6); Perkins v Williams • In an action in contract, the parties may submit to the jurisdiction by express agreement in the contract that disputes be referred to a particular court: Vogel v Kohnstamm. 2 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting [2.2] Not submission • Not entering into an appearance and protesting the jurisdiction of the court is not submitting to the jurisdiction of the court: Re Dulles Settlement. • A clause which permits a choice of law does not amount to submission: Dunbee v Gilman & Co; Williams & Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA. [3] DOES THE STATUTORY EXTENSION PROVIDE TERRITORIAL JURISDICTION? >>>If Supreme court of X State and defendant in Y state The Supreme Court of [State] has jurisdiction irrespective of the cross-vesting scheme because Court now has Australia-wide in personam jurisdiction. The Service and Execution of Process Act 1992 (Cth) enables the initiating process of a State court to be served out of the State of issue anywhere in Australia. Valid service is the basis of in personam jurisdiction: Laurie v Carroll. The Act therefore enables a [State] Court to assume jurisdiction over [defendant] without having to show a territorial nexus with the State of issue: Kontis v Barlin (1993) 115 ACTR 11 at 18-19 per Master Hogan. NB. Section 130 SEPA makes it clear that any State rules requiring a nexus between the issuing state and the defendant will no longer limit service ex juris within Australia. >>>If Supreme Court of Queensland The application of the Act to service outside Qld but within Australia is expressly recognised by r 123 UCPR (Qld) which requires originating process to be served in accordance with SEPA. >>>If District court of X State and defendant in Y state SEPA applies to District courts as well as Supreme Courts: s 15(1) (initiating process issued in a State may be served in another State). In effect, that Act will therefore confer “Australia wide” in personam jurisdiction upon District Courts. Valid service is the basis of in personam jurisdiction: Laurie v Carroll. The Act therefore enables the [State] District Court to assume jurisdiction over [defendant] without having to show a territorial nexus with the State of issue: Kontis v Barlin (1993) 115 ACTR 11 at 18-19 per Master Hogan. NB. Need subject jurisdiction (see 2. at [5] below) Eg. The action is clearly a claim for damages for person injuries and within the monetary limit of the District Court jurisdiction. NB. Are there any procedures available to [party] to prevent proceedings continuing in the District Court of [X State]? The District Court may stay its own proceedings if it is satisfied that a court of another state has jurisdiction and is the appropriate court to determine the matter: s 20(3) SEPA. In making a decision whether to grant a stay, the Court must take into account: s 20(4) SEPA (a) The place of residence of the parties and of the witnesses likely to be called in the proceeding; (b) The place where the subject matter of the proceeding is situated; (c) The financial circumstances of the parties so far as the court is aware of them; (d) Any agreement between the parties about the court or the place in which the proceeding should be instituted; (e) The law that would be most appropriate to apply in the proceeding; and (f) Whether a related or similar proceeding has been commenced against the person served or another person but not the fact that the proceeding was commenced in the place of issue. 3 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting It is uncertain whether these criteria differ from the common principles of forum non conveniens for determining whether the forum chosen is appropriate. >>>If Supreme court of X State in Y country and defendant in Z country Assuming [defendant] is to be served in [country] and therefore out of Australia, the Service and Execution of Process Act 1992 (Cth) does not apply. >>>If Supreme Court of Queensland The Supreme Court of Queensland will only have jurisdiction if service can be validly effected upon [defendant] pursuant to r 124 of the Uniform Civil Procedure Rules 1999 (Qld). Thus there must be sufficient nexus with Queensland as specified in r 124. The rule authorises service out of Australia where the proceeding is: (common examples below) • based on a cause of action arising in Qld: r 124(1)(a) • related to a contract made in Qld (r 124(1)(g)(i)) or made by one or more parties carrying on business or residing in Qld: r 124(1)(g)(ii) • based on a breach of contract committed in Qld: r 124(1)(h) • based on a tort committed in Qld: r 124(1)(k) • for damage all or part of which was suffered in Qld, caused by a tortious act or omission wherever happening: r 124(1)(l). Here, [eg. many of the consequences of [plaintiff]’s injuries occurred in Queensland], this would provide sufficient nexus to justify service out of the jurisdiction and hence provide a basis for jurisdiction in the Sup C of Qld. >>>If Supreme Court of New South Wales The Sup C of NSW will therefore only have jurisdiction if there is some nexus with NSW sufficient to enable service to be effected on the defendant out of Australia pursuant to the Supreme Court Rules 1970 (NSW) Part 10 (equivalent to r 124 UCPR (Qld)). Here, [eg. the fact that the wrongful act of the defendant too place in NSW is sufficient to provide that nexus as it authorises service of an originating process outside Australia where the proceedings are founded on a tort committed in the State: Supreme Court Rules 1970 (NSW) Part 10 Rule 1A(1)(d)]. >>>If Supreme Court of Western Australia The equivalent order under the Rules of Supreme Court (WA) to r 124(1)(l) UCPR (Qld) does not contain a provision equivalent to r 124(1)(l) relating to damage all or part of which was suffered in the State and caused by a tortious act or omission wherever happening). Thus, the Sup C of WA can not validly serve [defendant] outside the jurisdiction in [Z country], hence jurisdiction cannot be conferred upon the Sup C of WA in that way. >>>If District Court of X State in Y country and defendant in Z country Assuming [defendant] is to be served in [country] and therefore out of Australia, the Service and Execution of Process Act 1992 (Cth) does not apply. >>>If District Court of Queensland The District Court of Queensland will have jurisdiction if service can validly be effected upon [defendant] under r 124 UCPR (Qld) which applies to the District Court as well as the Sup C of Qld. There must be sufficient nexus with Qld as specified in r 124. The rule authorises service out of Australia where the proceeding is: (common examples below) 4 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting • based on a cause of action arising in Qld: r 124(1)(a) • related to a contract made in Qld (r 124(1)(g)(i)) or made by one or more parties carrying on business or residing in Qld: r 124(1)(g)(ii) • based on a breach of contract committed in Qld: r 124(1)(h) • based on a tort committed in Qld: r 124(1)(k) • for damage all or part of which was suffered in Qld, caused by a tortious act or omission wherever happening: r 124(1)(l). Here, [eg. many of the consequences of [plaintiff]’s injuries occurred in Queensland], this would provide sufficient nexus to justify service out of the jurisdiction and hence provide a basis for jurisdiction in the District Court of Qld. NB. Can another court, eg. SC of WA, invoke the in personam jurisdiction under the cross-vesting scheme and thereby assume jurisdiction over a defendant in, eg. New Zealand? Current authority indicates that in personam jurisdiction is not vested by the cross-vesting scheme: David Syme & Co Ltd v Grey (1992) 38 FCR 303 (by majority – at 310 per Neaves J held: the cross-vesting legislation did not relieve a person seeking to invoke cross-vested jurisdiction from complying with the Rules of Court regulating the manner in which the jurisdiction is to be invoked or exercised; at 330-332 per Gummow J held: the cross-vesting legislation should be construed as affecting only the subject-matter jurisdiction of the Courts in question, leaving personal jurisdiction to be achieved under the otherwise applicable rules). Similar construction of cross-vesting scheme argued by Mason and Crawford: “The Cross-Vesting Scheme” (1988) 62 ALJ 328 at 335”. If this approach is followed, it would not be permissible to effect service upon [defendant] in [New Zealand] unless there was such a nexus as is specified in [Order 10, Rule 1 of the Rules of Supreme Court (Western Australia), and there is not such a nexus here. 2. DOES THE COURT HAVE SUBJECT MATTER JURISDICTION? Federal Jurisdiction • Federal jurisdiction is that jurisdiction under Chapter III of the Constitution, whether exercised by a Federal Ct or a State Ct under the cross-vesting scheme. Includes (per Menzies J in Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591) o Jurisdiction conferred on the HCA under ss73 and 75 o Jurisdiction parliament confers on the HCA under s76 or any other Federal Ct under s71 or 77(i) o Jurisdiction which parliament invests in State Cts under ss71 or 77(iii) • If state law is applicable to a matter in which federal jurisdiction is exercisable, the application of state law is an application of federal jurisdiction: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 • Also note s79 Judiciary Act 1903 (Cth) 79 State or Territory laws to govern where applicable The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. • Note that the jurisdiction conferred under Chapter III is as to “matters” o Will be a matter under federal law where any right, immunity or defence arises under federal law: Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Section 71 Constitution The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other 5 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. 6 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting [1] HIGH COURT [1.1] Original jurisdiction Section 75 Constitution In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. Here, the matter involves _______ therefore the High Court does have original jurisdiction over such an action: s 75(i)-(v) Cth Constitution; [1.2] Additional original jurisdiction Section 76 Constitution The Parliament may make law conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject matter claimed under the laws of different States. Section 30 Judiciary Act 1903 (Cth) In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction: (a) in all matters arising under the Constitution or involving its interpretation; and (c) in trials of indictable offences against the laws of the Commonwealth. Here, the matter involves ________ therefore the High Court does have original jurisdiction over such an action: s 76(i)-(iv) Cth Constitution; s 30(a)/(c) Judiciary Act. [1.3] Exclusive jurisdiction of the High Court The High Court is vested with the exclusive jurisdiction of matters which are within the original jurisdiction of the High Court and which may be regarded as having greater or national federal significance: s 38 Judiciary Act 1903 (Cth). Section 38 Judiciary Act 1903 (Cth) Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters: (a) matters arising directly under any treaty; (b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State; (c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State; (d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth; 7 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting (e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. Note: Under the Jurisdiction of Courts (Cross vesting) Act 1987, State Supreme Courts are, with some exceptions and limitations, invested with the same civil jurisdiction as the Federal Court has, including jurisdiction under section 39B of the Judiciary Act 1903 (Cth). NB. • Mandamus = writ by the court to compel a public official to perform a public duty or exercise a discretionary power • Prohibition = order or decree forbidding a specified act or omission (particularly used to stop a court deciding in the absence of jurisdiction) • Section 38 of the Judiciary Act 1903 (Cth) is an exercise of the power to define jurisdiction as given in s 77 of the Commonwealth Constitution. Section 77 Constitution With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction. [1.4] Can the High Court remit matters to Federal or state courts? Section 38 is expressed to be subject to s 39B and s 44. Section 39B stipulates a range of matters as falling within the original jurisdiction of the Federal Court. Section 44 enables the High Court, on its own motion or on the application of a party, to remit a matter or any part of such a matter pending in the High Court to the Federal Court, or to a court of a state or territory. Further proceedings are to be as directed by the court to which the proceedings are remitted but subject to any directions of the High Court. [1.5] Appellate jurisdiction of the High Court Section 73 Constitution The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (i) of any Justice or Justices exercising the original jurisdiction of the High Court; (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only: and the judgement of the High Court in all such cases shall be final and conclusive. • s 73 Constitution grants the HC the power to (finally and conclusively) hear and determine appeals from all judgements, decrees, orders and sentences • The power in s 73 is subject to s 34 Judiciary Act 1903 (Cth), which requires leave of the HC be sought to bring an appeal from any interlocutory judgement Section 34 Judiciary Act 1903 (Cth) - Appeals from Justices of High Court (1) The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers. (2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers. 8 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting • Parliament has also created a number of exceptions to the jurisdiction under s 73 (eg. there is no right of appeal from a federal court single judge decision, and a full court decision requires special leave) • The Supreme Court of a federal territory is not a federal court or a court exercising federal jurisdiction within s 73 of the Constitution: Capital TV and Appliances v Falconer [2] FEDERAL COURT [2.1] Original jurisdiction The Federal Court was created by the Federal Court of Australia Act 1976 (Cth) pursuant to the Commonwealth Parliament power in s 71 of the Cth Constitution. The FCA Act does not itself specify the original jurisdiction of the Federal Court. However, the Federal Court has such original jurisdiction as is vested in it by the laws made by the parliament: s 19(1) FCA Act. The original jurisdiction of the court under s 77(i) of the Cth Constitution and s 19 of the FCA Act is limited to those matters in respect of which Parliament has specifically invested the Court with jurisdiction. Further, it follows from the wording of ss 75-7 of the Constitution that jurisdiction can only be conferred on the Court in relation to those matters mentioned s 75 and 76 (sections set out under High Court). A key provision investing the Court with jurisdiction in respect of a significant proportion of those matters is s 39B Judiciary Act 1903 (Cth). >>>If involves writ of mandamus or prohibition Here, there is a writ of mandamus/prohibition/injunction being sought who is/is not an officer of the Cth, therefore the matter is/is not within the original jurisdiction of the Federal Court: s 39B(1) Judiciary Act. >>>If matter in which Cth seeking an injunction or declaration Here, there is a matter in which the Cth is seeking an injunction/declaration. Thus the matter is within the original jurisdiction of the Federal Court: s 39B(1A)(a) Judiciary Act. >>>If matter arising under the Constitution or involving its interpretation Here the matter arising under the Constitution/involve its interpretation because _______. Thus the matter is within the original jurisdiction of the Federal Court: s 39B(1A)(b) Judiciary Act. >>>If involving matter arising under any law The Fed C has jurisdiction in any matter arising under any law made by the Cth parliament other than the matter in which criminal prosecution is instituted or any other criminal matter: s 39A(1A)(c) Judiciary Act. Section 39(1A) has been expansively interpreted as a general conferral of jurisdiction: Transport Workers Union v Lee (1998) 84 FCR 60 at 67. However, it is essential that the relief sought can only be granted if some right exists by force of a federal law: Elders v Swinbank (2000) 96 FCR 303. >>>If common law claim Here, [party]’s claim is likely to be a common law claim in [eg. tort]. There is no suggestion of any right existing by force of a federal law and therefore no basis on which the Federal Court would have original jurisdiction (nor supporting an argument for accrued or associated jurisdiction). NB. If there is state jurisdiction over the matter – FC cannot have state jurisdiction conferred on it by cross-vesting scheme, despite their original attempts in s 4(1) (States) & s 9(2) (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 as HCA invalidated such provisions: Re Wakim; Ex parte McNally. 9 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting >>>If right exists by force of a federal law Here, [party]’s claim only exists because of the right under [Federal Act] (Cth). Therefore the Federal Court would have original jurisdiction. NB. If a claim is made that a right that owes its existence to federal law even if the only relief claimed is relief at common law or equity rather than a right to relief under a specific provision of a federal law. NB. Extension of jurisdiction: Note the insertion of s 39B(1A) in 1997 which clarifies the role of the High Court and represents an extension to the Federal Court’s original jurisdiction in ss 75 and 76. The Explanatory Memorandum indicated that the jurisdiction is extended to give the court a greater role in the administration of federal laws by ensuring that the court is able to deal with all matters that are of essentially a federal nature. The function of s 39B(1) is to clarify or add to ss 75 and 76 those matters which are of an essentially federal nature in order to clarify the jurisdiction of the Federal Court. [2.2] Exclusive jurisdiction Federal Court has exclusive jurisdiction over suits brought by the Minister or the ACCC: s 86 TPA (Cth). [2.3] Associated jurisdiction To extent permitted by the Cth Constitution, jurisdiction can be conferred on the FC in respect of matters not otherwise within its jurisdiction that are associated with matters in which jurisdiction of the court is invoked: s 32 FCA Act. They must still be of an essentially federal nature conforming to ss 75 & 76 Constitution. Here, [matter] is associated with [other matter] because _______. [Other matter] is of federal nature as it comes/does not come within the subject matters listed in s 75 & 76 Constitution because it involves: treaties, consuls, Cth is a party, between States/residents of States/residents of different states, mandamus/prohibition/injunction sought, matters arising under Constitution/involving its interpretation, arising under any laws made by parliament, admiralty/maritime jurisdiction, relating to same subject matter claims under laws of different States. NB. This jurisdiction is less important due to s 39B(1A) Judiciary Act. [2.3] Accrued jurisdiction Jurisdiction: This is a discretionary jurisdiction enabling determination of claims arising under the common law or state legislation if they are part of the same ‘matter’ as the claim within the federal courts primary jurisdiction: ss 76(2) & 77(1) Constitution; ss 19 & 22 FCA Act. NB. Source: It does not arise under s 32 FCA Act. Instead under s 76(2) of the Constitution which indicates that Parliament can make laws conferring original jurisdiction of the higher court in any matter. Sections 76(1) & (2) allow the court to hear matters arising under the Constitution in matters involving interpretation. But ss 19 and 22 of the FCA Act (rather than s 32) also indicates that the court should be able to grant all remedies to parties before it where those parties appear to be entitled to those remedies. Test: To enable the federal court to join [party]’s non-federal claim of ____ with federal claim of _____ within one proceeding, both matters must fall within the scope of one controversy, and hence within the ambit of the one matter: Re Wakim; ex parte McNally; Fencott v Muller. >>>If common law claim AND TPA claim 10 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting Here, _____: (select a bullet point) • A CH V TPA claim attracting federal jurisdiction and equitable relief for passing off are not so disparate and independent of the former, but instead they are part of the whole matter between the parties and thus within Federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions. In Philip they revolved around a similar range of goods and the same conduct. Here, _____ [common transactions and facts] means they arise out of a common substratum of facts giving the Fed C jurisdiction over the attached claim. • Here there have been claims made for breach of s 52 Trade Practices Act (federal) and alternative common law claims of [fraud / negligence / breach of contract]. This is analogous to Fencott v Muller where similar were made in relation to allegedly false representations made by the respondents as to the profits and turnover of a business subsequently purchased by one of the Applicants. These were held to be claims within one matter giving the Fed C jurisdiction. • The nature of the common law claim of passing off and misleading and deceptive conduct under s 52 TPA fall within the scope of one controversy, and can therefore be joined through accrued jurisdiction: Adams v Adam Fairground. NB. IF primary federal claim fails/untenable/not genuinely pursued • If the primary claim is genuine the court will retain the accrued jurisdiction to determine the attached non-federal claims even if the primary federal claim fails: Burgundy Royale Investments v Westpac. • The FCA will not have any accrued jurisdiction if the primary claim is untenable or not genuinely pursued or is clearly so untenable that it could not possibly succeed: NSW Land Council v ATSIC. >>>If single claim against various parties & judgment diminishes the amount recoverable from others Here, there have been a number of [eg. breaches] by [party 1, 2 & 3 etc] for the loss of _____. This is like Re Wakim where a damages were sought for various breaches of duty by the Official Trustee, solicitors and a barrister for the loss of what might have been recovered in a bankruptcy claim had they been prosecuted differently. Court held this to be a single claim for damages seeking to be pursued against each party sued. As judgment and recovery against one diminishes the amount recoverable from the others, there is a ‘common substratum of facts’ in each proceeding. Similarly here _______. >>>Otherwise Here, _____: (select a principle and apply) • What is a single controversy? Look to: Fencott v Muller (at 608 per Mason, Murphy, Brennan and Deane JJ) o What the parties have done; o Relationship between or among them; o The laws which attach rights or liabilities to their conduct and relationship. • Re Wakim (at 585-6 per Gummow and Hayne JJ) – principles: o There is but a single matter if different claims arise out of ‘common transactions and facts’ or a ‘common substratum of facts’ (Phillip Morris at 512 per Mason J) notwithstanding that facts upon which the claims depend ‘do not wholly coincide’(Fencott at 607 per Mason, Murphy, Brennan and Deane JJ) o There is one matter where different claims are so related that the determination of or is essential to the determination of the other (Philip Morris at 512 per Mason J) eg. 3P proceedings or alternative claims for same damage and the determination of one will either render the other otiose (useless) or necessitate its determination o Conversely claims which are ‘completely disparate’ (Felton v Mulligan at 373 per Barwick CJ), ‘completely separate and distinct’ (Phillip Morris at 521 per Mason J) 11 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting or ‘distinct and unrelated’ (Moorgate Tobacco Co Ltd v Philip Morris at 482 per Stephen, Mason, Aickin and Wilson JJ) are not part of the same matter. o There is no basis in principle for concluding that there can never be accrued jurisdiction where a new party is joined because if the ‘matter’ is to be identified from what the parties allege and how they conduct the proceeding and if the ‘justiciable controversy’ refers to the factual dispute between them, there’s no warrant for holding that federal jurisdiction ends as soon as a new party (against whom no federal claim is made) is added. • The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. In the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter: Fencott v Muller (at 608 per Mason, Murphy, Brennan and Deane JJ). However this cannot be understood as a test to be applied: Re Wakim (at 585 per Gummow and Hayne JJ). NB. IF primary claims fails/untenable/not genuinely pursued • If the primary claim is genuine the court will retain the accrued jurisdiction to determine the attached non-federal claims even if the primary federal claim fails: Burgundy Royale Investments v Westpac. • The FCA will not have any accrued jurisdiction if the primary claim is untenable or not genuinely pursued or is clearly so untenable that it could not possibly succeed: NSW Land Council v ATSIC. Philip Morris v Adam P Brown Male Fashions • Two causes of action – misleading and deceptive conduct for the use of a trade mark under s52 TPA and passing off at common law • Held that passing off was not a disparate and severable claim but was part of the same matter that the s52 claim was • Both claims centred around the same range of goods and the same conduct • Hence the Federal Court has jurisdiction to solve the whole of the controversy • Mason J set out the guiding principle: "…it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction" Fencott v Muller • There were proceedings before the Federal Court in which claims were made for damages for breach of s 52 Trade Practices Act, along with alternative claims of common law for fraud, negligence or breach of contract • These claims related to allegedly false representations made by the respondents as to the profits and turnover of a business subsequently purchased by one of the Applicants • Additional parties were also involved in related claims which included breach of fiduciary duty and a claim for an indemnity • The appellants appealed to the Full Court of the Federal Court contending that proceedings were entirely outside the jurisdiction of the Federal Court • It was held that the claims were within one matter so the Federal Court did have jurisdiction • The court stated that it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter Adams v Adam Fairground • The passing of and misleading and deceptive conduct both arose out of the same set of facts, set of 12 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting circumstances, and there was evidentiary material common to both claims • The nature of the common law claim of passing off and misleading and deceptive conduct under s 52 TPA fall within the scope of one controversy • Therefore, the matters were able to be joined through accrued jurisdiction and dealt with proceeding under ss 19 and 22 of the Federal Court of Australia Act [2.4] Incidental jurisdiction Though a court of superior record (s 5 FCA), the Federal Court is a court of statutory jurisdiction and subsequently does not have inherent jurisdiction in the same way as Supreme Courts (Jackson v Sterling Industries) However, the Federal Court's powers extend to 'whatever is incidental and necessary to exercise of that jurisdiction and to the exercise of any powers conferred by legislation' (Wardley Australia v WA) (eg. powers to control and supervise its own proceedings, prevent abuse of process, etc) [generally referred to as implied jurisdiction] [2.5] Appellate jurisdiction The appellate jurisdiction of the Federal court and its exercise are prescribed in Div 2 Part 3 of the FCA Act. The key provision is s 24(1), which provides that Subject to that section and to any other Act, the Federal Court has the jurisdiction to hear and determine – (a) appeals from a single judge of the Federal Court (b) appeals from the Supreme Court of a territory (does not include ACT or NT) (c) appeals from state courts exercising federal jurisdiction, but excluding Full Courts (e.g. a Court of Appeal) (d) appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a Federal law other than the Family Law Act 1975 (Cth), the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth), or regulations under any of these Acts. NB. • There is no jurisdiction to hear appeals from a decision of a single judge of the court hearing an appeal from the Federal Magistrates Court: s 24(1AAA); • In case of interlocutory judgments, an appeal may only be brought if the court or a judge gives leave to appeal: s 24(1A); • Under s 25, the appellate jurisdiction is generally exercised by a Full Court, but appeals from a judgement of the Fed Mag C may be heard by a single judge if the Chief Justice considers this appropriate; • Appeals from a court of summary jurisdiction may be exercised by a single judge or the full court; • Section 28 deals with manner in which a court may deal with an appeal. [2.6] Reference jurisdiction Section 25(6) of the FCA Act indicates that a single judge of a Federal Court may state any case or reserve any question to the Full Federal Court. It is not an “appeal” per se, but a reference to a full bench of the Federal Court to clarify a matter or to refer a case from a single judge to a full bench under the reference jurisdiction. NB. 13 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting • The same applies to a court which can appeal to the Fed C: s 26(1) • If the referring court is exercising summary jurisdiction then can be exercised by single judge or Full Fed C: s 26(2) (otherwise must be full court: s 26(2)(b) FCA Act). [3] FEDERAL MAGISTRATES COURT Established by Federal Magistrates Court Act 1999 and jurisdiction defined by Federal Magistrates (Consequential Amendments) Act 1999. The Federal Magistrates Court was established in 1999 as a strategy to deal with the excessive workloads of the Federal Court and Family Court. There was an increase in the number of Federal matters of a less complex nature coming before these courts, which clogged the procession of cases and the Federal Magistrates Court was created to take the pressure off those courts. The role of the Federal Magistrates Court is to hear Federal matters of a less complex nature. This court is ideal for intellectual property claims and minor Trade Practices Act claims. It is also a considerably cheaper and more efficient option. [4] SUPREME COURT [4.1] Original jurisdiction The Supreme Court of Queensland’s jurisdiction is “all jurisdiction necessary for the administration of justice in Queensland”: s 58(1) of Constitution of Queensland Act. NB. • Sub-section (2) provides that (a) the court is the supreme court of general jurisdiction in and for the State, and (b) has unlimited jurisdiction at law, in equity and otherwise (subject to the Cth Constitution) • s 9 SCQA 1991 preserves jurisdiction vested in the Court prior to the Commencement of the Act, and s 7 continues the court as a Court of record. • The jurisdiction of the Supreme court is founded on 2 independent basis: o Supreme Court Act 1867 (s 34 & 35) which vested the court with the jurisdiction and authority that the Supreme Court of NSW exercised in the territory of Queensland. o Supreme Court Act 1867 (s 21-24) which vested the court with jurisdiction co-extensive with the English Common Law and Equity courts at the date of the Act. [4.2] Federal jurisdiction Federal jurisdiction on state courts is done by a two step process: (1) s 39 Judiciary Act is the principal jurisdiction conferring state and Federal jurisdiction on the state courts. Section 39(1) indicates that the jurisdiction of the High Court is exclusive of the jurisdiction of the state courts as set out in s 38. It is crucial to note that those matters indicated as exclusive jurisdiction of High Court under s 38 are still maintained, that is – • matters arising directly under any treaty • matters between states • matters between the Commonwealth and states • matters in which a writ of mandamus or prohibition is sought against a Commonwealth or a federal court officer 14 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting (2) Section 39(2) in exercise of s 77(ii) Constitution power, invests State courts (within the limits of the jurisdiction whether as to locality, subject matter or otherwise) with federal jurisdiction in all matters in which the HCA has original jurisdictions. NB. Trade Practices Act 1974 (Cth) s 86 restricting the jurisdiction of state courts re matters arising under the TPA only to matters arising under Part IVA or IVB or Division 1, 1A or 1AA of Part V [re matters of which a civil proceeding is instituted by a person other than the Minister or the ACCC) [4.3] Inherent jurisdiction The jurisdiction of a supreme court includes all those powers which are necessary to enable it to act effectively and control its own proceedings, and to prevent obstruction or abuse of its process, for example: • making practice directions: Langley v North West Water Authority • awarding costs and making orders for security for costs: Rajski v Computer Manufacture and Design • staying or striking out actions or pleadings which are frivolous, vexatious or an abuse of process: General Steel Industries v Commissioner for Railways. • The inherent jurisdiction extends to making its own arrangements in relation to the exercise of its jurisdiction subject to statutory requirements: Rajski v Wood. NB. It is important to note that this inherent jurisdiction is not necessarily a creature of statute – it is jurisdiction which is inherent in the nature of the courts themselves. But this jurisdiction also comes from the great tradition of the common law which provides inherent jurisdiction in the courts to be able to control its own proceedings. [5] DISTRICT COURT Original jurisdiction of District Court: The District Court is an inferior statutory court. Most of its jurisdiction is prescribed by s 68 of the District Court of Queensland Act 1967 (Qld). • Personal actions not exceeding $250,000 • Proceedings concerning land, value of which does not exceed $250,000 • Proceedings concerning equitable rights or relief, not exceeding $250,000 • Proceedings concerning estates, not exceeding $250,000 • Proceedings concerning children, not effecting assets exceeding $250,000 The powers, which the court has in the exercise of that jurisdiction, are set out in s 69. It has a monetary limit of $250,000: s 68(2) The District Court has jurisdiction throughout Queensland: s 8A District Court of Queensland Act 1967 (Qld). NB. Pursuant to s 68(1)(a) the District Court has jurisdiction over all personal actions, where the amount, value or damage sought to be recovered does not exceed the monetary limit including: (i) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated; (ii) any claim for detention of chattels; (iii) any claim for rent or mesne profits; (iv) any claim for any debt, damages or compensation arising under any Act; and 15 of 31 Paul Judge 2009 LWB431 Law of Commercial Entities Jurisdiction & Cross-vesting Pursuant to s 68(1)(b), the District Court has jurisdiction over actions and matters: (i) for
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