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High Court of Australia Transcripts |
Adelaide No A5 of 2000
B e t w e e n -
RESIDUAL ASSCO GROUP LIMITED
Plaintiff
and
JANIS GUNARS SPALVINS
First Defendant
MICHAEL JAMES KENT
Second Defendant
NEIL LESLIE BRANFORD
Third Defendant
KENNETH WILLIAM RUSSELL
Fourth Defendant
MICHAEL STEVENSON GREGG
Fifth Defendant
DELOITTE HASKINS & SELLS
Sixth Defendant
DELOITTE ROSS TOHMATSU
Seventh Defendant
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 MAY 2000, AT 10.17 AM
Copyright in the High Court of Australia
MR R.J. WHITINGTON, QC: May it please your Honours, I appear with my learned friends, MR M.F. BLUE and MISS A.L. McCARTNEY for the plaintiff. (instructed by the Australian Securities and Investments Commission)
MR S.J. GAGELER: If the Court pleases, I appear with DR M.A. PERRY and MR C.J. HORAN for the Attorney-General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)
MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with my learned friend MR G.R. COOPER, for the Attorney-General of the State of Queensland intervening in the interests of the plaintiff. (instructed by the Crown Solicitor for Queensland)
MR D. GRAHAM, QC, Solicitor General for the State of Victoria: If the Court pleases, I appear with my learned friend, MS P.M. TATE, for the Attorney-General for the State of Victoria intervening in support of the plaintiff. (instructed by the Victorian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend,
MR R.M. MITCHELL, on behalf of the Attorney-General for Western Australia intervening in support of the plaintiff. (instructed by the Crown Solicitor for Western Australia)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MR K.L. KELLY, intervening on instruction of the Attorney-General for South Australia in support of the plaintiff. (instructed by the Crown Solicitor for South Australia)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, on behalf of the Attorney-General for New South Wales intervening. (instructed by the Crown Solicitor for New South Wales)
GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by Phillips Fox, the solicitors for the fourth and fifth defendants, that the fifth defendant has died, but that Phillips Fox continue to be instructed by the executors of the estate of the fifth defendant. She has been further informed that the fourth and the fifth defendants do not seek to add anything to the submissions filed by the first and third defendants. There is a certificate from the Senior Registrar that she has been informed by Messrs Mallesons, Stephen, Jaques, solicitors for the sixth and seventh defendants that the sixth and seventh defendants will not appear at the hearing of this matter and will submit to the orders of the Court save as to costs. Are the parties agreed on an order of presentation of argument?
MR JACKSON: Yes, there has been, your Honour. My learned friend wants to say something about that.
MR WHITINGTON: If the Court pleases, the plaintiff has agreed with the interveners that if it is satisfactory to the Court the plaintiff will put its submissions after the interveners have put theirs.
GLEESON CJ: Yes, thank you. Yes, Mr Jackson.
MR JACKSON: Your Honours, if I could just say in relation to the order of events. First of all, our learned friends intervening, as we understand it, wish to go in this order: Queensland, Victoria, Western Australia, South Australia, New South Wales and the Commonwealth, followed, of course, by the plaintiff, and then followed by our submissions in reply. So far as an estimate of time is concerned, the estimates I have been given add up to late tomorrow morning.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Jackson.
MR JACKSON: Your Honours, these proceedings arise because an application has been made by the plaintiff in the action in the Federal Court for an order that the proceeding in the Federal Court be treated as a proceeding in the Supreme Court of South Australia. That application is made pursuant to section 11(2) of the Federal Courts (State Jurisdiction) Act 1999 of South Australia. Section 11 - and I will come to its terms in just a moment - is one of a number of provisions of the Act to which I shall have to take the Court, the validity being in issue in the proceedings.
If I could go for a moment to our written submissions at page 2 paragraph 12, as we there say, the operative provisions of the Act fall into the two groups to which we there refer. They are not unrelated, of course, and that is a matter to which we refer when dealing with severance, but may I go immediately to section 11(2), which is the apparently central provision.
Your Honours, I say "apparently" because section 11(2) is a provision which is not self-contained and its true operation is identified by having regard to its neighbours, to the provisions in relation to which it finds itself. So, may I go, your Honours, to section 11(2). What your Honours will see is that subsection (2) says that:
A persons who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court -
the Supreme Court of South Australia, of course -
for an order that the proceeding be treated as a proceeding in the Supreme Court and the Supreme Court may make such an order.
Now, as is apparent from its terms, section 11(2) may be invoked by what is described as a person "who was a party to a proceeding in which a relevant order is made". Could I just pause at that point to say one thing, and it arises from the submissions made on behalf of the Attorney-General for the Commonwealth, page 8 of those submissions, paragraph 3.1. Your Honours will see from the second sentence of it that much carbon, if that be the right substance, has been expended on the word "was" where it is used in section 11(2).
Your Honours, not much seems to follow from that and our submission will be that nothing, in fact, does follow from the way the fact that section 11(2) says, hardly surprisingly, "A person who was a party to a proceeding", et cetera.
Your Honours, if I could go back then to the words of section 11, the condition of operation of section 11(2) is that there be "a proceeding in which a relevant order is made", and the term "relevant order", your Honours, is one which is defined by section 11(1). Now your Honours will see that if one looks at the several parts of the definition, it identifies and it uses three categories in so doing. Decisions of the Federal Court are holding in a State matter, and I will come to the definition of that in just a moment, your Honours, holding that the Federal Court "has no jurisdiction".
Now, your Honours, could I just pause to say that so far as the definition of "State matter" is concerned, your Honours will see that in section 3 of the Act, it is the last of the definitions in that provision and it means, relevantly, your Honours, paragraph (c), a matter:
in respect of which a relevant State Act -
and that term itself is defined to identify the acts under the definition of "relevant State Act" -
purports or purported to confer jurisdiction on a federal court -
Now, your Honours, if I could go back from that to - - -
KIRBY J: Could I just ask, is that a reference to the Corporations Law and the State counterpart, is it not?
MR JACKSON: Yes, your Honour, because the - - -
KIRBY J: Would there be any other State Act?
MR JACKSON: Yes. Your Honour will see:
"relevant State Act" means any of the following Acts -
that is in - - -
KIRBY J: Yes, I realise that, but any other in (c)?
MR JACKSON: It could be any of those ones, your Honour. If one took, for example, the Gas Pipelines Access (South Australia) Act 1996 , the scheme in relation to that - and I think in relation to a number of other pieces of legislation - is that one has one of the States selected by one means or another. One of the States enacts, in effect, a code dealing with the subject and that is picked up by other States, and that is one type of provision. There are others, your Honours, but the various Acts are those referred to in the definition of "relevant State Act", and as is apparent from paragraph (h) of that definition, other enactments could be prescribed.
Your Honours, could I go back then to section 11(1) to the definition of "relevant order". Now, your Honours, I do not want to dwell unduly on the provision but the provision is, in the end, of some importance and may I take your Honours for a moment to identify the nature of the orders contemplated by the concept of "relevant order"?
Your Honours, first if one goes to paragraph (a) of the definition, your Honours will see that it speaks of orders of three types - orders "dismissing" proceedings "for want of prosecution". That means, of course, that the proceedings have failed. The applicant has lost. The case in the Federal Court has come to an end.
GLEESON CJ: For want of jurisdiction?
MR JACKSON: Yes, your Honour. But, your Honour, the point I am seeking to make about it is that the case in the Federal Court has come to an end and been dismissed by the order of the Federal Court. I do not, your Honour, suggest that it is determinative of the ultimate merits of the case.
The second class of case, your Honours, referred to in paragraph (a) is that it consists of orders "striking out" the proceedings "for want of jurisdiction". That may or may not have a different effect from dismissing them for some purposes but that is what it does. It strikes out the proceedings. The one thing that is clear is that by making such an order the Federal Court has decided that the proceeding in it is at an end.
The third category, your Honours, is where the Federal Court has ordered that the proceedings be stayed, again, "for want of jurisdiction". Now, your Honours, whatever might be the precise effect of the order staying the proceedings, the one thing that can be said is that it means that the proceedings are not to go ahead.
McHUGH J: But your whole argument depends on the word "proceeding", does it not, and treats it as if the purpose of this section was to lift the documents and the file out of the Federal Court and treat it as lodged in the Supreme Court of the State?
MR JACKSON: Well, that is what it does, your Honour.
McHUGH J: Would you have any argument if "proceeding" was read as "claim", for example? Supposing they had used the word "claim" instead of "proceeding".
MR JACKSON: Your Honour, I do not doubt - could I say, I do not suggest that it is not possible to create a structure which would, perhaps broadly speaking, have the effect of allowing in the Supreme Court proceedings to be instituted in that court in which the court could take into account what had occurred in another court. However, your Honours, that is not quite what this Act does and that is where, if one goes to section 11(3) and 11(4), and I will come to that in just a moment, it is pretty apparent that what your Honour put to me is exactly what is sought to be done.
Now, your Honour, could I come back to that in just a moment? But what I was going to say about the paragraphs (b) and (c) of the definition of "relevant order" is that the declarations, determinations and decisions which are referred to in paragraph (b) and (c) of the definition of "relevant order" are determinations that have the result that the proceedings in the Federal Court have in one way or another come to an end.
One thing that it does make clear in that definition is that for there to be a relevant order, and thus attract section 11(2), the Federal Court must have made an order and the Federal Court's order is its determination of the ultimate fate of the proceedings before it, and the proceedings in the Federal Court are - and no doubt one can use a number of synonyms to describe it - but they are dead or in a state of permanent suspension. Whatever precisely it might be, it is that for which the Federal Court of Australia Act 1935 provides. Then one comes to section 11(2). I will come to develop this in just a moment, but what it says is that notwithstanding that the Federal Court has said that the proceedings in it are finished or forever suspended, the Supreme Court can say, "No, that isn't so. The proceedings are to continue in the Supreme Court".
Could I come then to section 11(2). The way in which section 11(2) is drafted is that it contemplates that the order that will be made is an order that the proceedings be treated as a proceeding in the Supreme Court. But the relative blandness, as it were, of that description is not sustained when one goes to the provisions of subsections (3) and (4) which give some meaning to the phrase. What those provisions do - and I will come to the detail of them in a moment - in terms is to make it clear that notwithstanding that the Federal Court has determined how the proceedings are dealt with, the State law gives them - that is, the proceedings - a different and new life to be lived in accordance with State law.
Could I go then to section 11(3). If one looks at the opening words of subsection (3), it says:
If the Supreme Court makes an order under subsection (2), the proceeding -
and that is a reference back to the proceeding in the Federal Court -
despite the relevant order -
the relevant order being an order of the Federal Court -
(a) becomes, and must be recorded by the Supreme Court as, a proceeding in the Supreme Court -
Your Honours will see the use of the word "becomes". The proceeding becomes "a proceeding in the Supreme Court". Any suggestion that that is just a convenient way of describing a novel mode of instituting proceedings in the Supreme Court is really dispelled by the grouping of words that one sees used in subsection (4). Your Honours will see that the Supreme Court can make ancillary orders but the purpose of doing so is:
for the purposes of the proceeding being treated as, becoming and being recorded as, a proceeding in the Supreme Court.
Your Honours, that involves there is no notional prescription by the legislature. What it is saying is that the effect of the making of an order is intended to be that the proceedings in the Federal Court become the proceedings in the Supreme Court.
KIRBY J: What happens if a State judicial officer, a judge of the Supreme Court, looks at a proceeding when it comes down from the Federal Court and sees an egregious error? Does the judge have any discretion or any power at that stage to say, "Well, this cannot just be treated as a determination"?
MR JACKSON: The way in which subsection (2) - - -
KIRBY J: There is a power to vary, is there not?
MR JACKSON: Yes, your Honour.
KIRBY J: But at the point of receiving it into the Court, is there any way to stop that, or it is done by force of Parliament's enactment?
MR JACKSON: The way in which subsection (2) - it is done, if I just go back, by the making of an order under section 11(2). Your Honour will see that the way in which the power to make such an order is phrased is the term "may", but that, of course, may not necessarily mean there is a discretion there. There may well be reasons why, if there be a discretion, it might not be exercised. But there must be an initial question, I suppose, about whether it does or does not give rise to a discretion. There would be much to be said, I suspect, for the view that in those circumstances there may be no discretion. But, that perhaps is a question your Honours do not need to resolve.
What I was going to say was that the proceedings then become, to use the words of the section, "the proceedings be treated as" become, and are recorded as, "a proceeding in the Supreme Court". Those provisions do, one notes in passing, reflect the State Jurisdictions Act long title. I know your Honours will not spend too much time on that, but could I just say the way in which it is expressed is:
An Act to provide that certain decisions of the Federal Court.....have effect as decisions of the Supreme Court -
and, your Honours, that covers a number of the provisions of the Act.
So, your Honours, in short, one has a situation where the Federal Court has brought proceedings in it to an end by one or other of the orders in question. Those orders have their own consequences to be worked out in accordance with the statute pursuant to which they are made. But the State law, presently in question, in the most direct way, says in subsection (3), "despite the relevant order", that the orders of the Federal Court are not to have that effect. That, in our submission, is a very apparent inconsistency.
GLEESON CJ: What the Federal Court has actually said is, "This Court has no jurisdiction, and for that reason these proceedings cannot continue here".
MR JACKSON: Yes, it has, your Honour. What it has said is, "These proceedings cannot continue in this court.", but that means no more, with respect - that means the same thing as saying these proceedings cannot continue.
GLEESON CJ: I do not follow that. Why is there an inconsistency between the Federal Court saying "These proceedings cannot continue in this court because this court has no jurisdiction" and a State law saying, "But the proceedings can continue in the Supreme Court"? Where is the inconsistency?
MR JACKSON: What one has is a situation, if the proceedings are - to take one example, first of all - if they are dismissed in the Federal Court and dismissed ex hypothesi on the ground of no jurisdiction, the proceedings in the Federal Court have come to an end. Now, in relation to that, what one sees section 11 saying is, "Despite the order of the Federal Court that the proceedings, the vehicle for determining the claim, despite the order of the Federal Court that the proceedings are at an end, we will pick them up" - the State picks them up and takes them over to the Supreme Court. If one looks at the words that are used and the words that are used are being treated as becoming and being recorded as "a proceeding in the Supreme Court".
The same observations apply to striking out. But to other cases where there has not been an order of the Federal Court which disposes of the proceedings in the sense of dismissal or striking out, but simply stays or makes a determination, the result is that the proceedings are still in being in the Federal Court, albeit ones that the Federal Court has said it does not have jurisdiction to deal with further.
HAYNE J: You use the language of inconsistency. Where is the inconsistency to which you are pointing?
MR JACKSON: Inconsistency arises between the provisions of the Federal Court of Australia Act that allow the Federal Court to dispose of matters before it and the provisions of the Act, generally - if I can put it that way - covering the field of the activities of the Federal Court . On the one hand, and on the other hand, the fact that section 11(2), read with subsections (3) and (4), gives a further or different effect to what is done by an order of the Federal Court .
McHUGH J Do you get that out of (3)(b), do you, in so far as it as says that:
despite the relevant order.....for all other purposes, is taken to have been brought in the Supreme Court on the day on which the proceedings was first recorded as a proceeding in the federal court.
MR JACKSON: Your Honour, that is part of it. I had not taken your Honours specifically to (3)(b). I was really going to a stage anterior to that, I suppose, and saying that the way in which section 11 deals with the proceedings is to take proceedings in a Federal Court, which have been dealt with by the Federal Court but it changes the effect of the orders made by the Federal Court because the Federal Court's order brought those proceedings in one fashion or another either to an end or stopped them. It then picks up the same thing from the Federal Court and makes that proceeding into a proceeding in the Supreme Court.
HAYNE J: But the ambiguity lies, does it not, in your use of the terms "disposal", "dealt with" and the like? In the one case, the Federal Court disposes of it by saying we will go no further for want of jurisdiction. In the other case the Supreme Court goes forward to dispose of the matter by adjudicating the rights and duties at issue.
MR JACKSON: Your Honour, I would not disagree with what your Honour is putting to me as being what the intention is that will happen - and your Honour spoke about "the matter", of course, in the way in which your Honour put it to me - nor would I disagree with the proposition, your Honour, that the Supreme Court has jurisdiction to deal with the same matter that had been claimed to be within the jurisdiction of the Federal Court, nor, your Honour, would I dispute the proposition that what you have is that the Federal Court has dealt with a case by saying we have no jurisdiction to deal with it.
The fault, in effect, in section 11, your Honours, in our submission, is that what it attempts to do is not to, in one way or another, say in proceedings in the Supreme Court, the Supreme Court can have regard to the course, for example - I am putting it in very round terms - can have regard to the course that was followed in the Federal Court and make such orders to expedite proceedings and so on as may be appropriate. What it does do is to say the proceeding and, your Honour, it can only be the Federal Court, becomes the Supreme Court proceeding.
McHUGH J: That is the strength of your argument, the word "becomes", but it really is a staggering proposition to my mind that the draftsperson can be so foolish to think that, consistently with Chapter III, a State could just legislate to take a proceeding out of the Federal Court and put it in the Supreme Court of its State.
MR JACKSON: That is what they have done, your Honour, with respect.
McHUGH J: I do not know that they have. I know that it is ambiguous. There is some verbal indications that that is it - - -
MR JACKSON: Well, your Honour, I am going to say something about - - -
McHUGH J: But to give it such a construction just seems to my mind extraordinary.
GLEESON CJ: Mr Jackson, would section 11(3) have a different meaning if the words "despite the relevant order" were not there?
MR JACKSON: No, your Honour, it would not really, but from our point of view the words "despite the relevant order" are, in a sense, an emphatic - they assist our argument - but what your Honour Justice McHugh said to me is, in effect, the essence of it. We would be in difficulty if the way in which the legislature had approached it had not been, to use the expression for example, "becoming". So, your Honour, the expression "despite the relevant order" is something which supports us but it is not fundamental to our argument.
Your Honour, if I could just go back to what your Honour Justice McHugh was putting to me a moment ago. Could I say two things? The first is, if the legislature had used different language, no doubt we would not be here. But one does really have to start with the language that the legislature did use. Now, your Honours, if one is looking to see what is to be the effect of the order contemplated by subsection (2), one sees the content of it from the remaining provisions and, your Honours, any doubt about it is really taken away, in our submission, by the terms of subsection (4) being where the distinction is drawn. It said:
proceeding being treated as, becoming and being recorded as, a proceeding in the Supreme Court.
McHUGH J: If it was not for the word "becoming", the words "being treated as" would indicate it was a fictional or a notional transfer.
MR JACKSON: Yes, and, your Honour, the potential difficulty then would be perhaps in relation to subsection 3(b) in so far as it operated retrospectively. There may be a problem in that regard.
HAYNE J: Why would that be a problem? Why cannot the State make whatever law it likes about limitation provisions?
MR JACKSON: Well, it can, your Honour, generally speaking it can. I will accept that. What you will have, however, would be a situation where, on one view of it, you would have subsection (3)(b) saying that, at a time when there were proceedings in being in the Federal Court, there were yet deemed to be proceedings to the same effect in the Supreme Court.
Now, your Honours, although I do not suggest it as a particularly strong argument, it is possible that that might be thought to, perhaps, contravene Chapter III in relation to Federal Courts but the strength of our case is "becoming". Your Honours, one of your Honours said to me earlier that something in relation to the movement of the files, and so on. Could I invite your Honours to note also, but really only for completeness, in a sense, the provisions of the Supreme Court Rules that have been made. Your Honours will see that referred to in the case stated book. The rule is rule 123A and it is at page 18 of the case stated book. Your Honours will see the definition provision in subrule .02 and then in subrule .05:
An applicant for an order under Section 11(2) of the Act ("the order") shall commence proceedings for the order by a summons, joining as defendants all other parties to the proceeding in which the relevant order was made ("the relevant proceedings").
(2) Where the order is made:
(a) subject to any order of the Court:
(i) the Registrar or like Officer of the Court in which the relevant proceedings were brought will be requested to send the record of the proceedings to the Court; and
(ii) the Court shall proceed -
et cetera. So, your Honours, could I just say in relation to the status of that, that is a rule of court, of course, and it is made pursuant to section 72 of the Supreme Court Act of South Australia - perhaps I should give your Honours copies of that. I just invite your Honours to note one provision about it and that is subsection (3). All I wish to say about it, your Honours, is that if it were thought that there was some conflict between rule 123A.05 and the terms of the State Jurisdiction Act itself in relation to practice and procedure of the Supreme Court, then section 72(3) may give rule 123A a greater statutory force than it would otherwise have as delegated legislation.
GLEESON CJ: What would happen if the registrar of the court in which the relevant proceedings were brought did not comply with the request referred to in the rules?
MR JACKSON: Well, your Honour, the real answer is nothing would happen. If something did happen, your Honours would probably be deciding the issue as between the Commonwealth and the State. But it is difficult, your Honours, to see that the State law could compel an officer of the Commonwealth to deliver to it documents which were filed in a Commonwealth court, in a Federal Court.
McHUGH J: What about under subpoena, in curial proceedings?
MR JACKSON: Well, your Honour, I suppose that is possible, yes. It may well be, it would be difficult to see that there is relevant privilege that could be claimed, relevant immunity, perhaps.
McHUGH J: In Sankey v Whitlam I argued that State courts did not have the power to subpoena federal-type documents, but the Court would not deal with the question it had not been - because I think I was a party or something.
MR JACKSON: Your Honour, if an issue arose about that, of course, there may then be a question of federal jurisdiction in the court dealing with the subpoena and if the federal jurisdiction were invested in the State court, then it may well then just be a question of whether there was a non-constitutional immunity in the Federal Court officer.
KIRBY J: It sounds like the ghosts of implied immunity is walking.
MR JACKSON: Well, your Honour, it is possible, yes. I am not suggesting that the federal officer could be required to do it, but the possibility does arise of the issue arising. All I am saying, your Honours, is the way in which 123A.05(2) is framed is not in any compulsory terms, but I mentioned it because it is one of the provisions that is perhaps germane.
Now, your Honours, the provisions to which I have referred are the provisions which, as I said before, were sought to be utilised by the applicant in the proceedings. Could I give your Honours the references in the case stated book where your Honours will see that: paragraph 9 of the case stated at page 7, and your Honours will see the documents there referred to. The summons is at page 20, the application at page 30.
GLEESON CJ: Do we have the order of the Federal Court?
MR JACKSON: Your Honour, I think the answer to that is no actually, but - your Honours the order is not in the case stated book. I understand it can be made available if necessary. It is referred to in - but, your Honours, I think I gave your Honours to the summons at page 20 and the application at page 30, and your Honours will see the orders that were sought in each case at pages 21 and - I am sorry, your Honours, I think I said page 30, it should have been page - - -
GAUDRON J: That order is not for an order that it "becomes". It is an order that it "be treated as". So, on your substantive argument, as it were, let us assume one said it cannot become a State proceeding. Why can one not proceed as if the word "become" were not there? What I really mean to ask is: what is the relevant reading-down provision of the State Act in any event? Given that all that is sought is an order that it "be treated as", what argument do you then make?
MR JACKSON: Your Honour, what we would say is this: the expression "treated" in section 11(2) is one which takes its meaning, in our submission, from sections 11(3) and 11(4). The concept that the legislature has suggested is that "treated" - first of all, your Honours will see that subsection (3)(a) is the provision that gives the order some meaning in the first place. Your Honours will see that subsection (3)(a) is really the operative provision. That provision would have to go. The second thing about it is that if you look at subsection (4), what is contemplated by the legislature is that:
the proceeding be treated as, becoming and being recorded as, a proceeding in the Supreme Court.
In our submission, it really is not possible, we would say, to derive from that some particularly lesser - whether one does it by excision or by reading down, we would say it is not possible to arrive at an alternative view of the provision which one can say is obviously the legislative intention.
I just have to give your Honours a reference. I think I gave your Honours the wrong one before. The summons is at page 20, the substance of it at page 21, the application at page 22, the substance of it at page 23.
GLEESON CJ: That order appears to be exhibit ALM35 referred to on page 39 line 30, but I gather the exhibit is not reproduced?
MR JACKSON: No, your Honour, that is so.
GLEESON CJ: Presumably a permanent stay of proceedings?
MR JACKSON: Yes, your Honour. I think the terms of the order are those paraphrased in paragraph 85. Can we check that and, if there is no objection, we can no doubt give your Honours a copy of the order.
Could I turn then to the remaining provisions which are the subject of the questions reserved. Those are sections 6, 7, 8 and 10. May I go immediately to sections 6 and 7. If I could start with section 6, your Honours will see that it divides itself into two parts. First of all, in paragraph (a) it speaks about ineffective judgments of the Federal Court or the Family Court in effect otherwise than as a Full Court, and then paragraph (b) deals with decisions of the Full Courts. Could I invite the Court to note a number of aspects concerning those provisions. The first thing is that the provision uses the expression "rights and liabilities".
GLEESON CJ: I am sorry to interrupt you. A small point: are the headings in the print part of the Act?
MR JACKSON: I am sorry? The headings of each section?
GLEESON CJ: Yes.
MR JACKSON: The answer, I think, your Honour, is no, but may I check that?
GLEESON CJ: Thank you.
MR JACKSON: As distinct from the chapter headings and so on. I will give your Honours a reference to the provision of the Interpretation Act 1971 in due course. The point I was going to take your Honours to first of all was this, that your Honours will see the section uses the expression "rights and liabilities" and a similar term is to be found in section 7, for example, the opening words of section 7(1). What I was going to say was that each of those terms was a defined term and you will see the definitions contained in section 3 of the Act. The term "right" is defined to include "an interest or status", the term "liability" to include "a duty or obligation".
The second feature is that the term "judgment" is also defined and your Honours will see judgment defined to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". The third feature is that the term "ineffective judgment" is one defined by section 4(1). I will come to it in a moment, but could I invite your Honours to note that it deals with - that whereas section 11 had fixed upon the definition of "relevant order", which referred to an order dealing with absence of jurisdiction, that is not the case in relation to "ineffective judgment", because the term "ineffective judgment" is defined by section 4. If one goes to the principal part of the definition, which is subsection (1), your Honours will see that it provides that:
A reference in this Act to an "ineffective judgment" is a reference to a judgment -
and your Honours have seen that can be final or interlocutory -
of a federal court in a State matter given or recorded, before the commencement of -
that section of the Act -
in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act.
If one goes then to the definition of "relevant State Act" which is again in section 3, ones sees, for example, the Corporations (South Australia) Act. One sees also "State matter" defined in section 3, and one sees, for example, paragraph (c):
in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court.
The fourth matter is, if one goes back to section 6 itself, what your Honours will see is that the declaration of "rights and liabilities" is one which is intended to operate retrospectively as well as prospectively. Your Honours will see the use of the word "always" in the opening words of section 6.
Now, your Honours, if I could take your Honours for a moment to our written submissions at page 4 in paragraph 13.1, what we would seek to say is that unless it be that the orders made by the Federal Court are void the State Jurisdiction Act provides an additional, but identical, source of rights and obligations, to put it shortly.
Now, your Honours, I will come in a moment to a matter relied upon by our learned friends, that is the Court's earlier decision in Humby, but before doing that could I take your Honours as well to section 7. Now, your Honours, section 7(1) once again has the retrospective effect, as you will see from the use of the term "always" in 7(1)(b), and what it says is that a right or liability, et cetera, by section 6:
is exercisable or enforceable; and
(b) is to be regarded as always having been exercisable or enforceable,
as if it were.....conferred.....by a judgment of the Supreme Court.
But it also, once again, makes it apparent that identical rights are being created and could I refer your Honours, without going to it in detail, page 5 of our written submissions paragraph 14.1.
Could I invite your Honours to note one particular aspect related to section 7(1) and also particularly section 7(2). Your Honours will see that section 7(2) says that the:
rights and liabilities conferred.....by section 6 include the right of a person who was a party to the proceeding or purported proceeding in which the ineffective judgment was given or recorded to appeal against -
your Honours will see the words -
that judgment.
Now, your Honours, perhaps I could just say this, that in terms it purports to give a right to appeal against the judgment, that judgment being the judgment of the Federal Court. Now, your Honours, one argument advanced by our learned friends is that properly construed section 7(2) is concerned only with an appeal from the rights and liabilities, et cetera, that have been legislated for by section 6. Of course, the provision does not use quite that language but whether that be right or wrong, your Honours, there are several features which are germane.
Now, your Honours, in the first place a State law could not, of course, give a right of appeal to this Court, for example, or otherwise deal with appeals to this Court so that presumably what is being spoken of is an appeal within the State structure. Now, your Honours, in order to determine an appeal, what is being done is to examine the way in which the judge who determined the matter dealt with the matter before him or her and in order to determine the appeal which is contemplated by section 7, in order to determine whether the appeal should succeed or fail, it is necessary for the Court to determine whether the judge in the Federal Court erred, was biased or erred in some way, perhaps was biased or had, in some way, engaged in decision making which would be set aside.
So that if one makes the assumption in favour of the plaintiff that what is being done in relation to the appeal is to say this is to be treated as if it were an appeal from the Supreme Court, yet, as a matter of substance, the court must be determining whether judge of the Federal Court, whose decision is in question, erred. So that, your Honour, that, in our submission, seems, and I put it, your Honours, as a matter of substance - that, in our submission seems inconsistent with the structure of the Federal Court of Australia Act. Could I, in that regard, take your Honours to the appeal provisions of that Act.
One sees in section 24(1) that:
the Court -
which is, of course, relevantly the Full Court -
has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single judge -
If one goes to subsection (1A):
An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court -
"the Court" meaning the Federal Court -
or a Judge gives leave to leave to appeal.
Then, if one goes to section 33, there is the provision of the Federal Court Act which says that there is not to be appeal:
to the High Court from a judgment of the Court constituted by a single Judge.
The point I seek to make about it, your Honours, is that what one has in the Federal Court of Australia Act is that it contains the provisions dealing with appeals from judges of that Court and includes, for example, section 24(1A), to which I adverted a moment ago, which says that only judges of the Federal Court, either the Full Court or a single judge, can give leave to appeal in "an interlocutory" matter. The effect of section 7 and the provisions of section 6 which allow the appeal, in substance allow an appeal from the judgment of a judge of the Federal Court
Now, that is something which, in our submission, is to be catered for, if at all, or to be provided for, if at all, by an enactment of the Commonwealth.
GUMMOW J: Now, Mr Jackson, I suppose following the submissions yesterday, at least it could be that the Full Court of the Federal Court decided an appeal on the footing that contrary to what one side was arguing, the fact of the matter was that the trial judge had been exercising federal jurisdictions. The other side says, "No, that is not right" and they go off and they want to engage the State Act, so, in the State court the question then arises as to whether there is an ineffective judgment within the meaning of section 4. The State court has to decide that question. That involves the State court in the exercise of federal jurisdiction, I assume, to work out whether federal jurisdiction was being engaged, I suppose. What happens if the State Full Court and the Federal Full Court reach opposite views as to whether this trial judge was or was not exercising federal jurisdiction so that the State Act is or is not engaged?
MR JACKSON: Yes, your Honour, that possibility exists. However, it may be ameliorated - there are two features one could say about it, I suppose. One is that perhaps the first determination is one which is to be itself treated as binding on the parties. That may be one method of resolution of it. Your Honours, a second method of resolution of it would be if one of the parties sought section 75(v) relief from the Court in relation to the proceedings in the Federal Court.
GAUDRON J: Or to remove the proceedings in the State Court because they would be a constitutional issue.
MR JACKSON: Yes.
GUMMOW J: Have you dealt concurrently with section 75(v) applications?
MR JACKSON: Yes. Your Honour, it is capable of resolution but, of course, there may be circumstances in which it would be regarded - I am sorry, I am putting it badly. What I was going to say was this, your Honours, that if there were circumstances in which the jurisdiction of the Federal Court was in issue, a question which may well arise is whether the investment of federal jurisdiction in the State Court should be treated as subject to an underlying view, if I could put it neutrally, that questions of the jurisdiction of the Federal Court were to be decided by the Federal Court or by this Court. Now, your Honour, that is a difficult question and it is reflected in - and, your Honour, I will give your Honour the reference to the case a little later if I may - I think it is DMW and - - -
GUMMOW J: Yes, in 151 CLR.
MR JACKSON: Yes, your Honour, the issue was adverted to but, I think, not finally decided in that case.
GUMMOW J: Yes.
CALLINAN J: Mr Jackson, is there any authority close to the point I think you were talking about, that a failed attempt to invoke federal jurisdictions by seeking, for example, to rely upon some federal enactment, does in fact involve an exercise of federal jurisdiction? Is there authority for that? You may want to think about it and perhaps other people at the Bar table may wish to think about it too.
MR JACKSON: Well, your Honour, it is a question of identifying, I suppose, what is being done. I am sorry to put it in that way, your Honour. What I am seeking to say is, and I will see if I can find something more precisely on the point, your Honour, but what one does have, of course, is a court which is established by the Parliament pursuant to section 71, for example. Now, that being established, your Honour, in the absence, and if the court is given the attributes, if I can put it that way, of a superior court, in relevant ways, and there is no doubt our learned friends would want to argue that, then that would, in the ordinary course of events, allow the court to exercise jurisdiction by determining whether it did or did not have jurisdiction.
Now, your Honours, that does involve jurisdiction having a number of meanings or applications. There is both the substantive element and the procedural element. The substantive element is whether the statute, in effect, that purports to confer the jurisdiction as a matter of substance is one which, for example, is valid or does confer jurisdiction, or if dealing with a limited class of case, that this was within it. And, your Honours, that is one aspect of jurisdiction. But as to the other one, the determination of whether that is so or not, your Honours, that, in our submission, would be federal jurisdiction. It would be federal jurisdiction really because one of the aspects of jurisdiction is to determine whether matters are or are not within jurisdiction, and that is true of every court in Australia.
CALLINAN J: It is, I suppose. It certainly looks like federal jurisdiction if you bring a section 52 claim under the Trades Practices Act and perhaps you have failed because you cannot prove one element. That might appear a more obvious case than one in which, for example, some hopeless application is made in which somebody seeks to rely upon some statutory Commonwealth right and there is just no chance of relying upon it at all.
KIRBY J: Could I add a third layer which is where you are not in the realm of looking at a statutory flaw or a failure, as it were, to bring yourself within an undoubted and valid statutory power, but you are in the realm that you have lost your constitutional life support in the sense that the elemental law which pumps the lifeblood of the Constitution in you is missing. Now, I see in some of the footnotes some reference to the way the United States courts have dealt with this problem and, for myself, at some stage, I will be interested to look at this. It must not be without precedent that courts have been created and then found to be unconstitutional. It happened in our country. But can one then, as it were, retrospectively pump life support into such courts and their doings? It seems to me to be different in quality from simply slipping up on a statute or making a mistake within jurisdiction.
MR JACKSON: Well, your Honour, one does have to bear in mind, of course, that one is not speaking in the present case about a court which is dependent for its existence on there being a particular subject matter, the subject of legislation. I am speaking about - it is one of the courts that the Constitution contemplates may be established. And what your Honours have seen is that, over time, jurisdiction in relation to various matters and, indeed, parts of matters, has been given to the Federal Court. And of course one has now reached the point where matters arising under any law of the Commonwealth are within the jurisdiction of the Federal Court, save, I think, criminal matters under section 39(1)(b).
So that one is not really speaking about an entity - if I could use that expression - that needs to have the lifeblood pumped into it to live, like the kind your Honour was talking about. It is a body that is there. It might have a lot of work or a little work to do. But one of the things it has to do is to decide, at any particular time, whether the subject matter jurisdiction, which it has, falls within the jurisdiction that has been conferred on it. And your Honour, that is something which, in our submission, is, in one of the senses I referred to before, within the federal power of federal jurisdiction. I am mixing up jurisdiction and power in saying that, but within federal jurisdiction but in that sense.
Now, your Honour, if one had, for example - if I could use an example - a situation where the courts, the Supreme Court of New South Wales or any of the States, had been given and accepted a jurisdiction to do things in relation to, say, New Zealand, or New Zealand matters, there may be a question whether they would come within section 51(xxix), external affairs or not, but assuming for the moment that it did not, in determining whether the particular case was or was not within the jurisdiction conferred by New Zealand, the Supreme Court would be acting within its ordinary jurisdiction. So there is really, your Honour, in our submission, a distinction to be drawn between courts which, on the one hand, have only existence purely by reference to, for example, one subject matter under section 51 and courts which exist but have jurisdiction given in various matters. Your Honours, I am sorry it took some time to answer that.
May I go on in relation to section 7. What I was seeking to say, your Honours, was that, in substance, the appeal that was contemplated must involve a determination by the Supreme Court of the legal propriety of the judgment of the Federal Court.
GAUDRON J: Could I come back to there. Section 7(2), I take it, as a practical matter, will only operate where a notice of appeal has not been filed so that it is really section 11(2) that will transfer across appellate proceedings if they have not been completed in the ordinary course. I mean, I know there are some difficulties about absolute construction, but in practical terms that would seem to be how it is going to work, is it?
MR JACKSON: Well, your Honour, it would have to be section 11, yes.
GAUDRON J: So this section 7(2) is just a case where the notice of appeal has not, in fact, been filed and the subsequent stay has not occurred. I am sorry, continue.
MR JACKSON: It undoubtedly deals with cases where the appeal has not been instituted. It may also deal with cases in terms of purporting to give a right in cases where an appeal has been instituted but has not yet been determined. Now, your Honour, because section 11, in effect, transfers proceedings, but it is not in effect in itself saying what happens to them.
GAUDRON J: No, the reason I ask is that I am not too sure where your argument is going but, for my part, it seems to me it would not be fatal, assuming your argument is right about section 7(2), if it were just excised from the Act because what you would then be left with is a situation where you could apply for prohibition and certiorari in respect of a judgment at first instance in the Federal Court, and assuming which you would in a normal course obtain, and the proceedings there could then be transferred across and treated as instituted without the judgment in the Supreme Court. So it is not fatal to the determination of rights and liabilities, is it?
MR JACKSON: No, your Honour, I would accept that. However, if one has a situation where the limb of the appeal provision is gone and if we were right in saying that section 11 was a provision that would have to go, the body is starting to look a little disabled, in our submission.
GAUDRON J: Well, it may be. It seems to me, though, that there may be some greater substance in what you say about appeals on the merits, as it were, than in relation to the mere transfer of proceedings which have not yet resulted in a determination on the merits, but if so, even if there is some difficulty about appeals, it is not fatal to the operation of the Act.
MR JACKSON: Your Honour, I do not think I could submit that by itself it would be fatal to the Act in toto. Indeed, the States seem prepared enough to recognise the possibility of amputation and be prepared to put up with it in relation to appeals.
KIRBY J: Why do you say that? Why would the Constitution permit you to become a State proceeding and then to, as it were, give you the masquerade of being an order of the State court but not permit you to appeal?
MR JACKSON: Your Honour, I am assuming for the purpose of this that - - -
KIRBY J: I mean, the Constitution has an integrated judicial structure with appeal being the essence of it.
MR JACKSON: What I was seeking to say was that if one looks at the appeal provision by itself, and no other part of the Act can be regarded as in any way bad, then the result would be, I suppose, simply that in particular cases there could be no appeal.
KIRBY J: But that cannot be under our Constitution, especially in relation to a Supreme Court. At least, that is my preliminary view.
MR JACKSON: I am sorry, your Honour, what one is talking about, of course, is circumstances where there has been a decision of the Federal Court which is then legislatively made into a decision of the Supreme Court.
GLEESON CJ: You are not talking about an absence of a capacity to appeal from a judgment at first instance of the Supreme Court.
MR JACKSON: No, your Honour, what I am talking about is the legislative declaration. What I am saying, your Honours, is this, that by endeavouring to give to the Supreme Court a power to hear an appeal from what, effectively, in our submission, is a decision of the Federal Court, that is something that the State Parliament cannot do. If one cuts out that part of it, one is then left with a situation where orders have been made by the Federal Court which are orders made in proceedings that the Federal Court did not have jurisdiction to determine. In respect of those orders, there cannot be an appeal. It is as simple as that. In relation to that, your Honour, that does seem, with respect, to be a discrete aspect of it.
KIRBY J: Is it your submission that that would be consonant with the structure and language of Chapter III of the Constitution? It does not seem to be to me.
MR JACKSON: Well, your Honour, perhaps I may have gone a little too far in saying that. But one does recognise that this is, in a sense, a separate topic.
KIRBY J: Are there any orders of Supreme Courts which by State legislation are excluded, or can be excluded, under our Constitution from the ultimate review of this Court?
MR JACKSON: That, if I may say so, is a question that the Court may have to resolve, I suspect, in the not too distant future. The answer in our submission would be no. It is possible, of course, to deal with questions to provide for there to be leave and so on - - -
KIRBY J: Of course.
MR JACKSON: The point I am getting to is this, that what has been done in some cases, in some jurisdictions, is to attempt to make some courts, courts from which there can be no appeal to the Supreme Court of that jurisdiction.
KIRBY J: The Land and Environment Court is an example in certain matters.
MR JACKSON: Yes, but the question that arises in relation to those is whether for the purposes of section 73, those courts then should be treated relevantly as a Supreme Court. The result being that there would not be a court which was a final court of the State from which there could not be an appeal to this Court.
KIRBY J: I see that problem, but we are in a different realm here. We are in the realm of a Supreme Court and a purported registered order of a Supreme Court of the State, which is mentioned in the Constitution and in respect of which we have undoubted and constitutionally guaranteed obligations.
MR JACKSON: That is where I come, if I may, to the aspects to which we have referred in our written submissions to which I would like to take your Honours, at page 19, paragraph 37.
GAUDRON J: I do not follow how you say that the validity of section 7(2), or even if it be the case 11(2) in relation to appeals, arises in this case.
MR JACKSON: Your Honour, the question about appeals arises because one of the issues or the questions which the Court has to answer in the case stated concern, amongst other things, the validity of section 7 and that is what this is directed to, your Honour.
GAUDRON J: It is one of the questions raised and as I understood it, it was raised because your argument was that if there was not a stand alone, as it were, invalidity in relation to 11(2), there was an invalidity by reason of its interlockedness with sections 6 and 7 but it is that interlocking aspect upon which you apparently rely which I do not understand.
MR JACKSON: Your Honour, we would put it in two ways. Your Honours will see in our written submissions that we say the provisions of the Act can be divided into two broad categories, that is, for example, sections 6, 7, 8 and 10 on the one hand and section 11 on the other. The particular case arises because the action taken under section 11 to remove the proceedings to the, as it were, Supreme Court. We say we challenge the validity of that on the discrete basis I was referring to earlier.
Now, your Honours, what we also say, however, is that in relation to the Act in toto, if one looks at the Act one sees that it contains a number of provisions which do not just seek to remove proceedings but also to determine what the rights are in those proceedings or what the rights of the parties are when those proceedings come to be dealt with and the two provisions do seem to have that interlocking nature. I do not know that I can put it more highly than that but that is what - - -
GAUDRON J: May I trouble you to just see that I follow it. You say then, do you, that 7(2) is invalid, well, 109 inconsistency, by reason that it purports to allow a State Supreme Court to hear an appeal on the merits from a Federal Court, that judgment having its own peculiar force as a judgment until set aside and because it retains that force as a judgment until it is set aside it can only be dealt with by the Federal Court in accordance with the Federal Court Act, therefore there is a 109 inconsistency.
MR JACKSON: Yes.
GAUDRON J: And I suppose you say then, if I follow, that 11(2) has the same 109 inconsistency in so far as it applies to appeal proceedings already launched in the Federal Court?
MR JACKSON: Yes.
GAUDRON J: Assume that is right, why cannot 11(1) be read down nonetheless with respect to first instance proceedings, which is all we are concerned with in this case?
MR JACKSON: Does your Honour mean the definition of "relevant order"?
GAUDRON J: Yes, it would be.
HAYNE J: Or perhaps reading down "proceeding".
GAUDRON J: Reading down "proceeding", yes.
HAYNE J: "Proceeding" being proceeding at first instance, not determined by, apparently, final order disposing of the rights and obligations of the parties.
MR JACKSON: Well, your Honour, that deals with one aspect of it, perhaps, but what it does not deal with is really, whatever particular orders are being spoken about, it does not deal with the second aspect and that is the operation of section 11(2) which means that the proceedings - 11(2) read with (3) and (4), as I have submitted earlier - that the Federal Court proceedings become - - -
GAUDRON J: Yes.
HAYNE J: That is the separate argument - - -
GAUDRON J: That is the stand alone invalidity argument. It is the interlocking argument that I am trying to follow through.
MR JACKSON: Well, your Honour, can I say this? What I am seeking to do in relation to sections 6 and 7 is to say, first of all, that those two sections have to be read together because section 7 seeks to elaborate upon, perhaps, or explain, to a degree, what is contemplated by section 6 by the concepts there. That is the first thing. Your Honour, what I have done in relation to that so far, if I can put it this way, is to deal really with one aspect of it and that is that this is endeavouring to - this affects, to put it neutrally, appeals. Now, your Honours, in relation to that, then if one goes from there - and if I could perhaps pass over the other two provisions that are in question, for the moment - if one goes then to section 11, section 11 is really a provision that operates upon the state of affairs that has been brought about by sections 6 and 7.
So it is not just a question, your Honour, of section 11 saying, in effect, these proceedings are removed from the Federal Court and are here, and they will then be proceedings in the Supreme Court. The decisions that have been made and the orders that have been made in the Federal Court are ones that are taken to be ones representing the position as between the parties and, so, will become applicable in the proceedings in the Federal Court.
HAYNE J: May it therefore be necessary, on this limb of your argument, to distinguish between interlocutory decisions that have been made in the course of the proceedings whilst pending in the Federal Court and the possibility of appeal against such decisions and whatever issues may arise in relation to appeals against final judgment, the basis for the distinction perhaps being that interlocutory orders may, may they, be regarded as open to review, afresh, at first instance, upon transfer into the Supreme Court?
MR JACKSON: Your Honour, because of the definition of "relevant order" in section 11(1), there will not have been a final determination of the substance of the proceedings.
HAYNE J: But the point may be that if your argument about, for example, appeal has force, that invites attention to questions of reading down. Really I suspect my question is: is a possible form of reading down a reading down which seeks to distinguish between interlocutory orders and other orders?
MR JACKSON: I have to say a couple of things in relation to that. The first is that if your Honour is talking about appeals in the context where section 11 is also involved, then a difficulty arises in this way. Necessarily the relevant order is one which because of its nature means that the Federal Court has not decided the matter finally. One would think that almost any order that might have been made by the Federal Court in the proceedings would be one which is interlocutory. That being so, there is, in our submission, the short, simple inconsistency between the terms of sections 6 and 7 to the extent to which they would give a right of appeal and section 24(1A) of the Federal Court of Australia Act which says that there cannot be an appeal unless either a Federal Court judge or a Full Court of the Federal Court has given leave to appeal. So that is that category, if I can put that to one side. If one then goes to circumstances where there has been a final judgment of the Federal Court, in circumstances of that kind section 11 is not brought into play, and perhaps I had not made that clear before, your Honours.
HAYNE J: But stopping at the first branch of your argument, the consequence of it would be that 7(2) would not be engaged at all in respect of interlocutory orders and would have nothing to say to it?
MR JACKSON: One would have to read it down to say that, your Honour, yes.
HAYNE J: Yes. And, if that is so, what, then, is the significance of 7(2) in its operation, or purported operation, as you would have it, in respect of final orders for the purposes of understanding how section 11 is to work validly?
MR JACKSON: If there has been a final order then section 11 says nothing about it.
HAYNE J: Just so, and therefore, why does 7(2) tell us anything that is relevant to the immediate disposition of the issue that arises in this case?
MR JACKSON: For this reason, that section 7(2), as your Honour has identified, could relevantly deal with, one would think, interlocutory orders, but if it does do that the situation which emerges, in our submission, is that provision would be invalid. Now, all I am seeking to say is that in dealing with sections 6 and 7, the provisions contains a number of defects and that is one of them, but the relationship between 6 and 7 on the one hand and 11 on the other is simply that in the cases to which section 11 is applicable to the extent to which there are decisions of the Federal Court which otherwise would be germane, they are treated, or purported to be treated, by sections 6 and 7 as representing what is the position between the parties. I cannot put any greater connection on the two than that. That is the connection.
I was going to go, your Honours, to paragraph 37 of our written submissions at page 19, and the point that we would seek to make is that if one is looking at the terms of sections 6 and 7 in so far as they purport to confer a right to appeal, your Honours will see, if I could perhaps start at 37.2, that in the case of an appeal from the Full Court of the Federal Court one has to have special leave, of course. In the case of a judgment from a single judge of the Federal Court, there is not any appeal to this Court. That is because of the provisions of section 33(2) of the Federal Court of Australia Act but there is, of course, an appeal to the Full Court of the Federal Court.
One can, on the other hand, appeal from a decision of a single judge of the Supreme Court to this Court with special leave. Now, the first thing we would seek to say, then, is what one has is what is in 37.3 and that is that the way in which the State Jurisdiction Act operates is by way of a legislative decree and what we would submit is that to the extent to which the terms of the Act could purport to give an appeal to this Court, then that could not be the case because there is no actual decision of the court which is in question.
Now, the second thing, your Honours - and this we put alternatively - is that if one goes to paragraph 37.5 of our submissions - that by giving the parties to a judgment of a single judge of the Federal Court the rights they have if it were a judgment of a single judge of the Supreme Court, the State Jurisdiction Act purports to give an appeal directly to this Court where section 33(2) of the Federal Court Act would not otherwise allow it. And, your Honours, as we say in paragraph 37.6, a corollary is that the State Jurisdiction Act allows an appeal from the decision of the single judge of the Federal Court to the Full Court of the Supreme Court, rather than to the Full Court of the Federal Court.
KIRBY J: The first point will not matter, will it, if, in fact, lawfully the State Parliament has transmogrified what was a Federal Court order into, in effect, a legislative direction or into a legislative judgment which may be recorded in the Supreme Court. If it has changed its character, then it is in the State sphere.
MR JACKSON: Yes, your Honour. Certainly, it has changed its character in the State sphere but, of course, in relation to this Court, one is talking about something provided for by section 73 and in that regard the limitation on appeals to the Court is to appeals from judgments, decrees, orders and sentences and the decrees contemplated by section 73 are not legislative ones, in our submission.
KIRBY J: There may also be lurking behind this a point raised by Kable as to whether - I mean, one understands why this has all been done, but one must be a little cautious about empowering legislatures by their decrees to, in effect, require certain matters to be recorded as judgments of courts which must be receptacles to receive federal jurisdiction because, if it can be done here where, arguably, it is understandable, maybe desirable in a general sense, it can be done in other circumstances where it may not be. And how does one have a principle to distinguish the one from the other once you have permitted it?
MR JACKSON: Your Honour, if I can perhaps come back to that in a moment but if I could just deal with the question of appeal. Your Honour, perhaps if I could just finish what I was going to say about appeal and then move on.
What I was going to say, first of all, your Honours, was this. If I can just remain at our submissions for a moment at page 20 paragraph 37.7, and your Honours, in so far as the State Jurisdiction Act deals with the Full Court of the Federal Court and decisions of that court, as indeed it does - and your Honours will see the terms of section 6(b), for example, which deal specifically with judgments of the Full Court and also section 4(2) of the definition in defining "ineffective judgments" - then, your Honours, what one sees is what we have in paragraph 37.7(a) and that is that the rights and liabilities become ones that are always amenable to appeal to this Court whereas the Commonwealth Parliament might have enacted there was no appeal from them. And the considerations in favour of or against the grant of special leave may vary depending upon whether the application is an appeal from a Federal Court or from a court of a State.
If I could come then to the aspects to which we refer. I am sorry. Could I say that the matter to which I would seek to come next, and this does in a sense touch on what your Honour Justice Kirby put to me a moment ago, could I come to the fact that the States, in drawing the legislation, have obviously relied upon the approach taken by the Commonwealth in the Matrimonial Causes Act where it was sought to overcome the situation in Kotsis v Kotsis and Knight v Knight where orders purporting to be court orders were not made by a court at all but by a person who was not a member of the court. We refer to those decisions at page 21 of our written submissions, in paragraphs 38 and 39.
The validity of that enactment was upheld by the Court in The Queen v Humby; Ex parte Rooney (1973) 129 CLR 231. May I take your Honours to that case. The legislation that was in question appears at page 242 in the reasons for judgment of Justice Stephen who wrote the principal reasons. Your Honours will see that section 5(3) of the Matrimonial Causes Act, said:
rights, liabilities, obligations and status of all persons are, by force of this Act, declared to be, and always to have been, the same as if.....the decree had been made by the Supreme Court of the State constituted by a single Judge -
to put it shortly. Your Honours will see also subsection (4). One matter that was of significance to the Court, if I could observe in passing, was that to which Justice Stephen refers at the bottom of page 243. That is that the Commonwealth legislature could have, at any time, could have provided for a divorce, et cetera, without there being any recourse at all to a judicial proceeding. Your Honours will see that at the last four lines on page 243. It goes on to say:
It is equally within power to legislate in respect of ancillary relief in terms that did not involve a determination by means of a judicial proceeding.
His Honour then went on to say, in the second line on page 244:
This is, in effect, what subsection (3) does, it takes the outcome of a non-judicial proceeding, before a Master or commissioner, and says of it that it shall have particular consequences, those consequences being identified by reference to the consequences of an order of a properly constituted judicial tribunal exercising jurisdiction in a matrimonial cause. Just as it would be open to the legislature to provide for a non-judicial form of divorce proceedings and to describe the outcome of such proceedings by reference to what is the result of a decree absolute.....so too it is within the power conferred by s.51(xxii) to enact section 5 of the Matrimonial Causes Act 1971 .
Could I just pause to say this, your Honours, that the members of the Court were astute to note that it was not a case where there was any encroachment upon judicial power. Your Honours will see that in the passage from Justice Stephen immediately following the passage to which I just referred, the paragraph commencing "My earlier analysis", and then in the third line of that paragraph said:
The section is not concerned with any purported exercise of judicial power; its only connexion with that subject matter is the wholly innocent one of using the outcome of the exercise of judicial power, the resultant decree or order and its effect, as descriptive of the effect which it gives to non-judicial proceedings, the purported decrees, with which it is concerned.
Justice McTiernan, your Honours, at page 239, about 5 lines from the top of the page, said:
The object of the Matrimonial Causes Act 1971 is to give binding force of a legislative nature to a "purported decree". The Act accomplishes such an object and does so without encroaching on the realm of judicial power.
Then, your Honour:
It does not aim at establishing a "purported decree" as a judicial decree or order.
Your Honours, if one goes to Justice Mason at page 248, your Honours will see in the first new paragraph on that page that his Honour referred to the fact that:
The legislative power with respect to divorce is not confined to authorising a dissolution of the matrimonial relationship by means of a judicial determination in a judicial proceeding.
He elaborated upon that through that paragraph, but your Honours will note that in the last third of the paragraph, he said:
Subject only to the limitations to be discovered in Ch. III, Parliament may provide -
et cetera -
or give an invalid decree or order made by an officer of the Supreme Court the same effect it would have had, had it been made by the Court or a judge thereof.
Then at the bottom of that page, his Honour said, in the last six lines:
It is the sub-section itself which defines the rights of the parties and it does so by reference to what their rights would have been had the decree or order been made, not by an officer, but by the Court.
Then at the top of the next page, in the second line:
But the sub-section does not attempt to validate the decree as a judicial determination. It lacked that character when it was pronounced and it does not acquire that character merely because the statute attributes to it the effect it would have had, had it been a judicial determination.
Your Honours, those are the particular passages to which I wish to refer.
Your Honours, when one comes to the enactment presently in question, what one sees is that whilst in section 6 it uses the expression:
The rights and liabilities.....are.....the same as if -
the ineffective judgments had been valid judgments of the Supreme Court, in other words, and picks up the language that had been used in section 5, what one then sees is that in section 7(2), for example, the provisions of the State Act go a further stage, to which reference is made, and the further stage, of course, is that it treats them as being judgments of the Supreme Court.
Your Honours, could I then say in relation - - -
GAUDRON J: Does that raise a Kable- type point in your - you do not submit that raises a Kable- type point?
MR JACKSON: I am sorry, your Honour, I did not quite catch it, your Honour?
GAUDRON J: I am sorry. You do not suggest that that raises a Kable-type point?
MR JACKSON: Your Honour, what we say about it is that one has ended up with a situation - I had not quite prepared what I was going to say on this point.
GAUDRON J: Yes.
MR JACKSON: What we do say is, I suppose, a couple of things. First of all, we seek to distinguish the distinct decision in Humby for the reasons to which I will come in a moment, but that are set out in paragraph 41 of our written submissions. The second thing we say about it, your Honours, is that what one has is that one is dealing with a situation where there are orders made by a Federal Court which are in being and which have not been set aside, and that what is sought to be done is to create a situation where, notwithstanding the existence of those orders, there is a at the same time another parallel State regime set out. So the source of the obligations is a State source in circumstances where there are existing orders in being. The third thing, your Honours, is that what you do have - and we say this particularly in relation to section 7 and the appeal provisions - is that what one has is a form of legislative decree which compels the Supreme Court to act in a way which is not that, in effect, of a court.
GAUDRON J: But all of that is State law, State judicial power, State matter. What could render it invalid except a Kable-type point?
MR JACKSON: What could render it invalid is that, first of all in relation to the Federal Court, you have a situation where there are orders of the Federal Court and determinations made by the Federal Court. What is sought to be done by the State is not to give those the effect that they would otherwise have but to give a separate State effect in circumstances where the orders have not been set aside. That is not the Kable point but it is the separate point which we - - -
GAUDRON J: Is it a 109 point? I mean, you are arguing for invalidity and I just do not understand what it is that strikes it down in your argument.
MR JACKSON: May I say first of all it derives from Chapter III, in our submission. What I mean by that is that so far as Federal Courts are concerned, it is for the Commonwealth Parliament to enact the laws which deal with their judgments and the effect of their judgments. It is an incident of the Commonwealth power to create Federal Courts which is dealt with in Chapter III.
GAUDRON J: Does that make it a 109 point again?
MR JACKSON: No, it is not, your Honour.
GAUDRON J: In this sense, that if you work from the premise that the judgment takes effect as a judgment unless and until set aside, then there seems to me to be a foundation for a 109 argument, but if you work from the basis that it is a nullity, then it seems to me that there is no constitutional impediment to the States doing what they are doing.
MR JACKSON: I do not think we would dispute that, your Honour.
GAUDRON J: So it is ultimately a 109 point, I think.
MR JACKSON: One can put it in two ways. One is that the terms of Chapter III by themselves have the effect that the only body which can legislate in relation to the jurisdiction and the orders of the Federal Court is the Commonwealth Parliament. One can put it at a different level - - -
GLEESON CJ: That is why we are here.
MR JACKSON: I am sorry, your Honour?
GLEESON CJ: That is how we came to be here.
GAUDRON J: Your argument would fall to the ground, would it not, if there were Commonwealth legislation saying any order given by the Federal Court in the purported exercise of jurisdiction pursuant to any of the relevant Acts is a nullity?
MR JACKSON: Your Honour, I would accept that the Federal Parliament could determine the effect to be given to orders of Federal Courts.
GAUDRON J: Is a nullity and then went on to say provided, however, the States may legislate to give effect to them. It would probably have to say that, yes.
MR JACKSON: Your Honour, it would, in our submission, be a question about whether the Commonwealth could do that and if it did, whether it would have any efficacy.
GAUDRON J: Yes.
MR JACKSON: Because what you would have then would be the Commonwealth Parliament legislating about what the powers of the States were to be. Now, I accept, your Honour, that the Commonwealth can, in certain ways, reduce the area of potential inconsistency but it is a different proposition, with respect.
GLEESON CJ: But why cannot the State Parliament say if the Federal Court has made an order without jurisdiction, the rights and liabilities of the persons affected by that order will be as they would have been if the Federal Court had jurisdiction?
MR JACKSON: Your Honour, because the rights and liabilities of persons affected by it are, until the Federal Court order is set aside, those which are determined by the Federal Court and what one has in those circumstances is the State Parliament endeavouring to give a parallel or an overlay to the orders of the Federal Court.
GUMMOW J: Mr Jackson, I think the Attorneys for Victoria and South Australia challenge that proposition as to validity until set aside where the reason of the invalidity is constitutional incapacity.
MR JACKSON: Yes. Your Honour, they do and may I say in relation to that we would say a couple of things. The first is I would seek, if I may, to deal with that effectively by way of reply. The second thing is that we would largely adopt what is said by the Commonwealth on that issue. The third thing, your Honours, is that to advance that argument, of course, does involve the Court - to advance the argument successfully does involve the Court overruling its decision in one of the Wakim cases and also, your Honours, in our submission, for example, Cameron v Cole.
GUMMOW J: Was Cameron v Cole a case of constitutional incapacity?
MR JACKSON: No, your Honour, the particular facts were ones where a person had not been served but it was held that although the Bankruptcy Court was of limited jurisdiction, it was still to be treated as having made orders that were valid until set aside.
GUMMOW J: That is right.
KIRBY J: Mr Jackson, I know Justice Gaudron tried to pin you down on this and so did I earlier. Do you raise a Kable argument or not?
MR JACKSON: Well, your Honour, we do, in the sense that we say, if what has happened as a result of the - if the effect of the enactment is to, by legislative decree, make into orders of the Supreme Court what has been decided by the Federal Court in circumstances where the appeal rights provisions that otherwise might exist pursuant to section 73 and the enactments in relation to special leave, if that is the effect of the legislation, as we submit it is, then what one has done has been to give to the Supreme Court, or to create in the Supreme Court, a jurisdiction purely by way of legislative decree. Now, your Honour, one can call it Kable or Kable-type or not, but that is what we seek to say.
GAUDRON J: Now, so far as your argument depends on 109 inconsistency, where is the inconsistency in a State law giving it precisely the same ultimate effect as it would have as an order of the Federal Court, the only difference being that in the Federal Court it is liable to be quashed for want of jurisdiction - that is what would happen ultimately unless an appeal quashed or set aside on appeal for want of jurisdiction - - -
MR JACKSON: Maybe, maybe not, your Honour.
GAUDRON J: Well, yes, but it is really just to give it the same effect. That is not an inconsistency, it seems to me. That is a buttressing.
GLEESON CJ: Where, I would add, the absence of effect results, and results only, from a previous attempt by this State legislature to confer on the Federal Court the jurisdiction that it lacks.
MR JACKSON: Well, your Honour, I accept that is the background to it but there is not any particular reason why that circumstance is one that should favour or be against the validity of this Act. One knows, of course, what the Act seeks to achieve. But may I say, your Honours, that it is not necessarily the case that the orders that were made by the Federal Court would be set aside and Wakim shows that. Because, in circumstances where the winding-up order was an order that was - - -
GAUDRON J: They may not be set aside but what Wakim does show is that if you attempted to enforce the judgment then prohibition would lie - if you attempted to enforce it as a judgment of the Federal Court. So what has really happened is it stands as a judgment in all respects except that it is effectively unenforceable in the Federal Court and all this does is to say, "Well, it is now enforceable elsewhere". It does not say it ceases to exist and ceases to be, it just buttresses it. No inconsistency at all as I see it.
MR JACKSON: If one takes, for example, a winding-up order, the winding-up order may not be set aside, so that the winding-up order exists, the winding-up order is something that is binding on whomsoever it may be binding. One cannot say this does not exist, and at the same time one cannot say a winding-up order was in fact made by the Supreme Court. What the State law seeks to do is to say, even though, for example, there is a winding-up order in fact made by the Federal Court are one which has not been set aside or which has been ordered not to be set aside, if I could put it that way, by, for example, this Court.
HAYNE J: But is that to examine the question at too broad a level of generality? Is the more pressing question not one of whether a particular label can be attached to an order, effective, made, in operation, et cetera? Rather, the more pressing question is, "Can A engage the coercive power of institution X to achieve result Y?", and that unless the argument is at that level of specificity are we at risk of simply arguing from labels or slogans?
MR JACKSON: Well, your Honour, of course one - - -
HAYNE J: It tests your tact, does it not, Mr Jackson? That is the first time I have seen you speechless, Mr Jackson.
MR JACKSON: Your Honour, I was endeavouring to think of something tactful I might say, but may I perhaps say something. What I was going to say is that undoubtedly one needs to examine the particular thing one is looking at but in identifying what section 6 is doing, and section 7, what one sees is that they give rise to an exact equivalence between what is done by the Federal Court and what flows from it. The result, of course, is that you end up with a situation where in circumstances where the order of the Federal Court is not set aside, it remains in being, prima facie, operative. Then, to give effect to it, one has the procedures of the Federal Court, for example, things as to non-compliance with orders and so on.
Now, what is done by the State Act is to give an additional regime in relation to that - if I could just take that example - and what one has is a situation where, prima facie, the Federal Court of Australia Act 1915 regulates what happens in relation to orders of the Federal Court but the State Act says there is another regime as well and that is where, we would say, that it gives rise to the inconsistency.
GLEESON CJ: The inconsistency being between this State law and the Federal Court of Australia Act?
MR JACKSON: Yes. I was going to take your Honours to our written submissions and in particular to paragraph 41 on page 22 which deals with Humby. Could I endeavour to make briefly the propositions that we set out there at the bottom of page 22 when we seek to distinguish the two enactments. In particular, in paragraph 41.1 the 1971 Act did not involve an attempt by a State Parliament to attribute legal consequences to the Act of a Federal Court in effect. I will not labour the point, but could we invite your Honours to look at the remainder of paragraph 41 in relation to that case.
Could I come then to the two remaining provisions of the Act with which the Court is concerned. Your Honours will see that section 8(1) says that:
Any act or thing done.....under or in relation to a right or liability conferred, imposed or affected by section 6 -
(a) has the same effect, and gives rise to the same consequences.....and
(b) is to be regarded as always having.....
as if it were done, or omitted to be done, to give effect to, or under the authority of, or in reliance on, a judgment of the Supreme Court.
The provision of course is retrospective, as section 8(1)(b) makes clear. Your Honours will also see that section 8(2) refers to "enforcement law", a term defined by subsection (3), and says that:
For the purposes of an enforcement law, any act.....gives rise to the same consequences.....as if each ineffective judgment were a valid judgment of the Supreme Court -
If I could go then to section 10, your Honours will see in subsection (1), that allows the Supreme Court to:
vary, revoke.....a right or liability conferred, imposed or affected by section 6 -
As we say in our written submissions in paragraph 19.2 on page 8, that is so even though the rights arise under subsisting orders of the Federal Court.
Could I go then to the proposition to which we refer at page 12 of our written submissions in paragraphs 26 to 28 concerning the effect of the orders of the Federal Court. What we submit is what we have said earlier, that the proceedings are not a nullity, even though they may be outside the court's jurisdiction.
McHUGH J: But why is that not so? I know in Brown's case I went along with not quashing the order, but the more I think about it, the more I think I was wrong to do so and that the view I have always taken about these matters is that these orders are of no effect. Under our Constitution, how can the orders of the Federal Court have effect? Let me give you an illustration: supposing the Parliament passed a law which said that there shall be a customs court whose members shall be appointed for one year, it has jurisdiction over customs matters. Such a law would be clearly invalid. It seems strange if that invalid court's orders could nevertheless have effect, any of them. Why are they not valid?
MR JACKSON: That is because it would not be a court.
McHUGH J: I appreciate that, but this is a Court under the Constitution. Justice Gummow and I have said in a number of judgments that these notions about common law courts and remedies taken from this common law system have to be modified and construed in the context of the federal system.
MR JACKSON: It was McJannet, for example.
McHUGH J: Yes.
MR JACKSON: Your Honour, could I say in relation to that, the example that your Honour has given to me is one where there is a non-compliance with section 72. There is no court, in our submission, and it is exactly the same as the situation posited by one of learned friends where they say, "What if a court was created that was above the High Court?". But the situation would be, one does give the words "Supreme Court" in section 71 some meaning and there could not, in our submission, be a court created that was superior to this Court.
The point I am seeking to make about that is it just would not be a court. That is the distinction I sought to draw when I was answering questions by your Honour Justice Kirby earlier. One is dealing with a situation where you have a court that is established in the manner provided for by the Constitution. It is perfectly true to say, your Honour, that one has to bear in mind the Constitution. But when one does bear in mind the Constitution, what you see is that in relation to the Federal Courts you have section 75(v). Section 75(v) provides, by way of prohibition, mandamus, and provides for the prohibiting orders of the courts being made or being acted on. So one sees in the Constitution itself the remedy for going beyond the powers that the Court has.
McHUGH J: It gives you a remedy, and as Chief Justice Latham said in South Australia v The Commonwealth, a citizen feels better if he or she has a declaration from a court that an Act of Parliament is invalid. But it really is of no force of effect. How can a court - and it might be a Supreme Court of a State exercising federal jurisdiction, that makes an order which is of no force of effect under the Constitution - how can it have any force and effect?
MR JACKSON: Well, your Honour, because Chapter III is talking about courts. One of the attributes of courts is that orders are made by them and, in some cases, may be orders which are valid until set aside. The Constitution provides a means for doing that in the case of Commonwealth courts, and the simplest means is section 75(v). So, your Honours, one is not dealing with circumstances where you have a Constitution saying nothing about the topic. First of all, it is dealing in a context of courts. Particular courts have the attribute; if they go outside it, 75(v), or perhaps one of the other provisions of the Constitution would be apposite. So one is not really talking - - -
McHUGH J: But take a Supreme Court - does not Murray and Cormie hold that Supreme Court judges are not Commonwealth officers for the purpose of section 75(v) of the Constitution?
MR JACKSON: Well, your Honour, yes, it does; that is so, of course. But your Honour I was dealing for the moment with Federal Courts. If you go to the case of the courts of the States, that is where one has the provision of section 73 where you have the appeal provisions and where, in the end, the appeal cannot be taken away.
McHUGH J: That means then that in the case of a State court exercising federal jurisdiction, that a citizen has to appeal to here. You just cannot disregard it.
MR JACKSON: No, your Honour, of course not. But, your Honour, that is not necessarily a bad thing for society. I do not mean it in a way - - -
McHUGH J: It may, because it would also mean that the order could not be impugned collaterally.
MR JACKSON: Quite, your Honour. But, your Honour, all that I am seeking to say is that it is not as if the only interest that the Constitution has is in saying that orders should be set aside. One is speaking in a context where courts, there is an appellate structure, recognised itself, recognised in the Constitution. And one of the attributes of courts, well before the Constitution, was to the effect in saying, your Honour, that a distinction drawn between superior and inferior courts.
KIRBY J: The question I asked earlier was not well put and I chose a too extreme case of the court itself collapsing like the Arbitration Court did. But short of that, I still have a concern - and it is similar to the question that Justice McHugh has been asking you - that under our Constitution, unlike the courts that it pre-existed in courts in other places, you ultimately have to trace your power, if it is a Federal Court, back to the lifeblood of the Constitution. And if that is fundamentally missing in a particular respect, either in the establishment of the court itself, or in the giving of a particular jurisdiction, then you lose that connection and it just seems to me to be different in kind to a court with undoubted jurisdiction, undoubted power, stepping outside it. It has lost its validity, it has lost its legitimacy under the Constitution and, for my own part, I would be grateful, if this question has been considered in the United States as it must have, if we could have reference to those authorities.
MR JACKSON: Your Honour, as I said before, this is an issue in relation to which our submission is that the decision in Re Brown; Ex parte Amann has to be re-examined and set aside and we would seek to make our submissions on this issue in reply, if we may.
GLEESON CJ: Mr Jackson, is it material to your argument - and it may not be - to address an issue that we almost confronted yesterday, that is to say whether when the judge of the Federal Court at first instance makes an order without jurisdiction and there is an appeal against that order on the merits and the appeal comes to the Full Court, is the appropriate course for the Full Court to take to decline to deal with the appeal and dismiss the appeal on the ground that the Full Court, like the judge at first instance, lacks jurisdiction, or is the appropriate course for the Full Court of the Federal Court to take to allow the appeal on the ground that there was no jurisdiction in the judge at first instance?
MR JACKSON: To answer your Honour directly, no, it does not really matter for present purposes. That is the answer, yes.
GLEESON CJ: Thank you.
KIRBY J: We were told yesterday that a different practice had been adopted. The Family Court simply got all its files and sent them somewhere else, whereas the Federal Court has had a variable practice as to what should be done. But if the lifeblood is gone, it just seems to me there is a problem that is different from English courts. It is a problem under our Constitution. It has lost its legitimacy.
MR JACKSON: Your Honour, can I say in relation to that, one does of course start with the Constitution and the Constitution has the effect that all the courts in Australia are ones which are affected by covering clause 5. It makes the Constitution superior. Now, having said that, one is then in a situation where there are Federal Courts contemplated by the Constitution as repositories of federal jurisdiction and there are State courts contemplated as repositories of both, to put it shortly.
In relation to the Federal Courts, there seems no doubt but that, subject to section 72, the Federal Courts can be created as ones which have limited jurisdiction or a very general jurisdiction as the Federal Court of Australia now has - very general jurisdiction bearing in mind the subject matter with which one is concerned, that is the matters arising under laws of the Commonwealth and a number of other matters in relation to which jurisdiction has been conferred.
Now, the point I would seek to make about it, your Honours, is that whether one speaks about it in a vivid way of saying the lifeblood or whether one speaks about it in some other more prosaic way, the fact of the matter is that the types of courts that might be created are ones which it is possible to categorise as ones which are superior in one sense, or inferior in another. Two, it must be, in our submission, for the Commonwealth to determine what attributes the court is to have. I do not mean the Commonwealth can do that entirely unexaminably or outside power - - -
GUMMOW J: It really comes down to section 71 of the Constitution.
MR JACKSON: Yes.
GAUDRON J: It is whether section 71 says - of course it says very little, it just says, relevantly, "such.....federal courts as the Parliament creates", but whether there is to be read into 71 a limitation that it cannot create courts which have the same sort of judicial power as the superior courts of records of the State. It really amounts to saying, on what has been put against you, I think, that the only courts that the Parliament may create are inferior courts.
MR JACKSON: Well, your Honour, that is what it comes down to if one uses the superior and that seems - - -
GAUDRON J: And if one says that, "of such other courts as the Parliament creates", then why should this Court be any different?
KIRBY J: If an attempt is made to confer on this Court jurisdiction which, under the Constitution it may not have, then this Court is not different. It is a matter of the Constitution and the distinction between inferior and superior courts is one which was apt to the courts of England. The question I am raising is whether it is an apt distinction and without the consequences for a whole polity which depends for its authority upon the language and meaning of the Constitution.
MR JACKSON: Well, your Honour, can I just say the issue is unlikely to arise in relation to this Court, except in limited circumstances, because the issue would be likely to arise, presumably, only in relation to enforcement of some order made by this Court. I mean there is no appeal - - -
KIRBY J: On the contrary, I thought it arose in respect of the Court of Disputed Returns. I do not think the Constitution authorises that and that is an example.
MR JACKSON: I am sorry, your Honour, I suppose I was really dealing with the more ordinary jurisdiction of the Court, if I can put it that way, but it is not, of course, just section 71 because section 77(i) says that:
With respect to -
a matter in 75 or 76 -
the Parliament may make laws -
(i) Defining the jurisdiction of any federal court -
Now, in relation to that, your Honours, in defining the jurisdiction of a Federal Court one of the things that the Parliament can do, in our submission, is to say in relation to this Court there is or there is not to be the approach taken that its orders are to be treated as valid unless set aside, it is or is not to have an attribute that applies to courts, generally, and one known to apply historically to courts. It can decide. It may, if one takes, for example, the federal Magistracy, one approach or the other could be taken. But what one does have, it would seem, a very, very limited view of the powers of the Parliament to take the view that it could not say, in relation to a court which it creates, that this Court's orders are to be effective until one of the mechanisms provided for by the Constitution for review of its decisions, namely, section 73 or 75(v), has been utilised.
One sees of course - it has been stated many times - things such as the presumption of validity. In relation to that, one might as well say that that doctrine is one which should not be applicable because it has the effect of saying that laws which are not valid are to be given some greater effect. So, in our submission, there is nothing very unusual about saying that the Parliament's powers extend to saying that the orders of a court of this kind have a particular effect.
KIRBY J: This is not spelt out in the Federal Court of Australia. It is just inherent in the use of the expression. It is a superior court of record, is it?
MR JACKSON: Yes, that is so, your Honour.
GAUDRON J: Or perhaps in the notion of judicial power in some respects. I mean, it would be a funny sort of judicial power, would it not, if final and binding decisions of proceedings inter partes were not final and binding because if given without jurisdiction they are a nullity, whether or not set aside?
MR JACKSON: Your Honour, there may be a slight difficulty with that in the sense that to adopt that view might perhaps limit the power of the Parliament in dealing with inferior courts.
GAUDRON J: Yes.
MR JACKSON: But, your Honour - sorry to be going backwards and forwards on the point, but it may be that something that supports what your Honour was putting to me was that if one does have the provision of section 72, that the appointment of judges of the Federal Courts has to be until reaching a certain age or early retirement, then in those circumstances that contemplates that they will be people to whom it is appropriate to give that attribute.
GUMMOW J: I think what you have been saying, Mr Jackson, is to sections 71 and 77(i) which probably consisted with the way Sir John Latham approach the Bankruptcy Court in Cameron v Cole [1944] HCA 5; 68 CLR 571 at 585 where he quite deliberately says, "I am not talking about a common law court, I am talking about what the Parliament has created". It is the second paragraph on 585.
MR JACKSON: Yes, your Honour. Could I also say in Cameron v Cole one sees a situation where Justice McTiernan at page 599, about halfway down the page referred specifically to the fact that although the Federal Court of Bankruptcy:
Though a court of limited jurisdiction, it is a superior court. The two characters are not inconsistent: and this is true even if prohibition would lie should the court act beyond its jurisdiction.
In that case, if I could just take your Honours to it for a moment, your Honours will see that Justice Rich at page 590, about halfway down the page, referred to there being two well-established rules, and, your Honours, these rules which, in our submission, were well established at the time of Federation. The first one does not matter, but the second one, about two-thirds the way down the page:
if in the course of a purported trial a fundamental irregularity has occurred which prevents it from being a trial at all, the decision of the Court is either void or voidable. It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.
Your Honours, could I just pause to say that the expression "in excess of jurisdiction" assumes, of course, that the Court is acting outside jurisdiction. The lack of jurisdiction may be for any reason.
KIRBY J: The difficulty I have is whether this is a fundamental irregularity within that expression or something deeper and stronger and more significant from a legal point of view because it stems back to the very foundation of the conferral of jurisdiction of the Constitution, and the examples he gives are examples from England which cannot speak of our constitutional context. That is why I think it will be much more useful for us to look at what the United States Supreme Court has said in analogous situations than the English courts, with all respect. Anyway, that is my view of it.
MR JACKSON: Well, your Honour, could I say that it is an inevitable aspect of - inevitable may overstate it slightly - but it is a very likely aspect of the fact that there are parallel judicial systems in Australia, something contemplated by the Constitution, something referred to, I think, in the Adam P. Brown Case concerning accrued jurisdiction, that one group of courts should not be considered as, in effect, superior to the other. They are the courts of the two different polities.
Now, that being so, there is always likely to be or there is always the potential of there being some conflict of jurisdiction or some absence of jurisdiction in one or the other, but, your Honour, all I am seeking to say about it is, that being so, the most likely reason for there to be some absence of jurisdiction is for constitutional reasons.
HAYNE J: Just before you leave that, in the use of the expression "valid until set aside" or "voidable" or "void" and all of these notions that walk across the stage, what do you say is embodied in the notion "valid until set aside"?
MR JACKSON: Your Honour, what we would say about it is that it is a subsisting order which binds the parties to it according to its terms.
KIRBY J: But cannot be enforced by definition?
HAYNE J: But there is the question. Is it subject to collateral attack? Is it open to further enforcement? Is it liable to be impugned, if I can use that in the most general sense by, for example, exercise of some supervisory jurisdiction such as 75(v)? Are these not questions to which distinct and separate attention must be given?
MR JACKSON: Your Honour, could I seek to say this, what it means when one speaks of it being "valid, unless and until it is set aside", it means, in our submission, that it is valid according to its terms. For example - - -
GUMMOW J: And according to the statute which created the court and said it would do certain things, hence 109.
MR JACKSON: Yes, indeed, your Honour, and that is - - -
HAYNE J: But, then, can it be given in answer, for example, to an allegation of trespass by somebody purporting to be a liquidator of a company ordered to be wound-up? It may be a separate question altogether not answered by uttering the expression "valid until set aside".
MR JACKSON: Your Honour, I appreciate that but what I would seek to say about it is this that if one leaves aside questions of third parties which may be a question of some difficulty but if one is speaking about the effect of an order the order, usually speaking, has effect as between the parties to it.
HAYNE J: And the effect it will have is that either it will justify one party in doing something or another party can call in coercive power to have it enforced.
MR JACKSON: Yes.
HAYNE J: Again, there may be separate areas for debate according to the nature of the order, what is sought to be done under it and how and why.
MR JACKSON: Indeed, your Honour.
HAYNE J: And all I seek to do is to ask whether your submission depends in the end upon attribution of the tag or is it an argument that addresses the separate kinds of consideration to which I draw attention?
MR JACKSON: Well, your Honour, I would hope it goes beyond the tag, but perhaps I could endeavour to put it more specifically, your Honours, if this were - - -
GLEESON CJ: Yes. We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, my learned friend and I would have no objection if your Honours wish to see the actual order that was made, a matter that was mentioned this morning, and to make an appropriate amendment to the stated case. We have provided the Court with copies of the orders if that be appropriate.
GLEESON CJ: Why do we not just slip that in the application book?
GUMMOW J: We could staple it to page 39.
MR JACKSON: Yes, your Honour.
GLEESON CJ: Yes, we have read that.
MR JACKSON: Your Honour, that is the first thing. The second thing is your Honour the Chief Justice - I am sorry, I should say one thing about it. It says "stayed", your Honours. There is no dispute about the stay being for want of jurisdiction. Your Honour the Chief Justice asked me this morning about the headings to sections. They are not to be taken into account. The relevant provision is section 19 of the Acts Interpretation Act .
GLEESON CJ: Subsection (3).
MR JACKSON: Could I come then to what your Honour Justice Hayne was asking me about before lunch? Your Honours, in that regard, an order made without jurisdiction may be enforced according to its terms, certainly in the first place against the parties bound by it.
Your Honours, for example, contempt proceedings lie for contravention of the order. You will see some cases referred to in that regard in the submissions on behalf of the Commonwealth, paragraph 2.5, footnote 10. I am going to take your Honours to one of them in a moment.
But could I refer your Honours to two of them, actually. The most recent of them is a decision of the Full Court of the Federal Court in Matthews v The Australian Securities and Investment Commission [2000] FCA 288. Now, your Honours, in that case - the printing of it has gone somewhat awry so that half of it is in italics - but if your Honours were to look at the page numbered 6 at the top of the page, page 6 of 12, your Honours will see in paragraph 16 of the reasons the reference to the Court's decision in Re Wakim. Then paragraph 17:
the matter coming before Justice Sackville for further directions -
Justice Sackville had found:
the appellant guilty of contempt -
for failure to comply or non-compliance with an order made by Justice O'Connor. Now, your Honours what was said then, or the contention that was advanced is in paragraph 19 on page 7 that because:
of the decision in Re Wakim; (Spinks v Prentice) and the invalidity of the purported grant of jurisdiction.....under the Corporations Law of the State of New South Wales, the Court was without jurisdiction when the orders of O'Connor J were made.....the orders made were "a nullity" and that, accordingly, any proceeding in this Court -
were -
incompetent and therefore the orders made by Sackville J should be set aside.
Your Honours, that is dealt with by the Full Court in paragraph 20 where it says "based on a false premise". Your Honours, I will not read it out but we would invite your Honours to read paragraphs 20, 21 and through to paragraph 26, including the proposition, in particular, at paragraph 25 that:
If, after the orders made by Sackville J -
that is dealing with the contempt -
the appellant had duly appealed from the orders of Justice O'Connor and had succeeded in having those orders set aside, the finding of contempt and orders made by Sackville J would not fall with the setting aside of orders made by O'Connor J.
Your Honours can I go to a case a little earlier in time. It is a decision of the Victorian Full Court in Little v Lewis [1987] VicRp 64; (1987) VR 798. Your Honours, we have just extracted the relevant couple of pages from it. Your Honours will see at page 804, if I could go particularly to the third paragraph on the page. There was an appeal against the committal for contempt and the contention was that the appellant considered the order to be wrong and was not bound to obey a decision which was wrong. It is then referred - the circumstances then refer to there had not been an appeal against the order enjoining the appellant before the hearing of the contempt proceedings, although he was considering an appeal. And then the Chief Justice who heard the matter at first instance, the statement is referred to at about half way down the page:
The order made by the primary Judge cannot be called in question before another Judge of this court. It can only be called in question by proceedings on appeal, and until that order is set aside or otherwise altered by an appellant tribunal, the order has the force of an order of this court and must be obeyed.
His Honour then said, in the next paragraph, that was:
correct and well supported by authority.
Your Honours I will not read it out, but can we invite your Honours to read from there, in effect, to about line 31 on page 805.
KIRBY J: This is truly a court of unlimited jurisdiction? This is the Supreme Court of Victoria which was originally established under the prerogative.
MR JACKSON: Your Honour, as unlimited, I suppose, as any of the Supreme Courts are.
GUMMOW J: I think not.
HAYNE J: I think the Victorian court is always a statutory court. I think it was not established by prerogative. It is a court of general jurisdiction but I would wonder whether it was a court of unlimited jurisdiction.
MR JACKSON: Your Honours, could I just perhaps adopt what was said in McJannet by three Justices of the Court to the effect that no court in Australia is entirely unlimited.
KIRBY J: No, but if you are looking at what is said to be the flaw here, the flaw is the lack of authority in the Constitution. That is not a problem for the Supreme Court of Victoria.
MR JACKSON: No, your Honour, I was not suggesting that, with respect. What I was suggesting was, in answer to Justice Hayne, endeavouring to deal with the effect of an order or what the cases say about the effect of an order that has been made and subsequently set aside, for example.
HAYNE J: And do not the contempt cases to which you presently draw attention identify the need, perhaps, to distinguish between the effect that an order may have in connection with the law of contempt and the effect that an order may have if, for example, a party seeks to invoke coercive process, as by warrant of execution or the like, to execute on an order that is made without jurisdiction? One exercise may perhaps be amenable to constitutional remedy to prohibit further steps, others may not.
MR JACKSON: Well, may not, your Honour, but of course - - -
HAYNE J: But the question cannot be treated as an entirely general one.
MR JACKSON: No, your Honour, I would accept that because there is with it as well another overlay, or perhaps dimension, and that is that what is meant by, in effect, "binding" has a number of meanings. One of the meanings is binding on the persons who are parties to the proceeding, or their privies, of course. In relation to those persons the order has the effect that it would have if otherwise validly made. Could I just say, on page 804, about six lines from the bottom of the page, quoting from the Judicial Committee in The Eastern Trust Company v McKenzie, his Honour says:
It is a misconception to speak of the order.....as only permissive; the injunction was, of course, interlocutory, not final, but it is binding on all parties to the order so long as it remains undischarged.
But if one is dealing with a situation where an order has been made by a court, and if one took a court that was not amenable to, say, section 75(v) prohibition, then the order of the court may be one which is relied on by a person as against someone not a party to the proceedings.
It may be relied upon in seeking to, for example, prevent interference with taking possession of a property. Now, that person is not bound by - the third party is not bound by the order and could challenge the validity of the order. It is caught up with the question of the persons who are bound by it.
McHUGH J: Mr Jackson - I am sorry, have you finished?
MR JACKSON: Yes, I had, your Honour.
McHUGH J: But, if you look for the reason for the rule as to why the orders of superior courts were good until set aside, they are not reasons that apply in a constitutional sense, and there were two principles that underlay that conclusion about the orders of superior courts. One was that in the case of a superior court every matter was presumed to be within its jurisdiction until the contrary was shown. So the very fact that it was an order of the court, unless the contrary was shown, it was presumed to be within its jurisdiction. And again, in the case of the courts at Westminster, the omnia praesumuntur rule applied to them and until the contrary was shown an order of one of those courts was presumed to have been validly made, whereas the opposite principle applied in the case of the inferior courts. Now, you cannot approach any court under the federal Constitution with the presumption that the matter is within its jurisdiction.
MR JACKSON: Your Honour, could I say in relation to that that if one goes to the United States cases where the leading United States case is, in our submission, at least, the decision of the Supreme Court in Chicot County Drainage District v Baxter State Bank [1940] USSC 4; 308 US 371, the concepts to which your Honour adverted - may I put it slightly differently. The contentions which we are advancing appear to have been accepted by the Supreme Court of the United States and the considerations that militate in favour of the adoption of the rule, or the maintenance of the rule as we would put it, are ones that they take into account. In that regard, what your Honours will see is that the case was one in which the law that was relied upon was held to be invalid.
If I could go to page 374 in the opinion of the court, your Honours will see in the first new paragraph:
The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree.
The court they are talking about is the US District Court. One comes then to page 376. At the top of page 376 your Honours will see things reminiscent of some of the observations made, with respect, in this case in my learned friend's submissions:
The argument is pressed that the District Court was sitting as a court of bankruptcy, with the limited jurisdiction conferred by statute, and that, as the statute was later declared to be invalid, the District Court was without jurisdiction to entertain the proceeding and hence its decree is open to collateral attack.
The court went on to say it thought the:
argument untenable. The lower federal courts are all courts of limited jurisdiction, that is, with only the jurisdiction which Congress has prescribed.
Your Honours, exactly the same as here.
But none the less they are courts with authority, when parties are brought before them in accordance with the requirements of due process, to determine whether or not they have jurisdiction to entertain the cause and for this purpose to construe and apply the statute under which they are asked to act. Their determinations of such questions, while open to direct review, may not be assailed collaterally.
Your Honours, if one goes a little further down the page quoting from M'Cormick v Sullivant, an early case:
They are all of limited jurisdiction; but they are not, on that account, inferior Courts, in the technical sense of those words whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error, or appeal, be reversed...... But they are not absolute nullities.
At the top of the next page it said, your Honours:
This rule applies equally to the decrees of the District Court sitting in bankruptcy, that is, purporting to act under a statute of Congress passed in the exercise of the bankruptcy power. The court has the authority to pass upon its own jurisdiction and its decree sustaining jurisdiction against attack, while open to direct review, is res judicata in a collateral action.
Your Honours, in that regard, could I go back to page 374 and at the bottom, the last five lines on the page, their Honours said:
that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.
Your Honours will see in the passage preceding that they refer to a number of considerations. Your Honours, could I also say that, and I do not want to - - -
KIRBY J: This is a very helpful authority from my point of view. Has it come before the Court since 1939?
MR JACKSON: Your Honour, there are some cases of it but I do not think this case has been adversely affected in any way.
McHUGH J: I think I referred to this case and other cases in Peters when it was before the New South Wales Court of Appeal.
MR JACKSON: I think your Honour may have, yes.
McHUGH J: Yes, back in - - -
MR JACKSON: Could I say, your Honours, this case was - or perhaps I should say, your Honours, if one goes from that to another recent decision of the Full Court of the Federal Court, Robins v Incentive Dynamics in [1999] FCA 1651; (1999) 91 FCR 423 - could I just add one thing before actually going to it, and that is that I was just about to say that I do not want to take over, in effect, the submissions made by our learned friends on behalf of the Commonwealth on this issue, but your Honours will see in the Commonwealth submissions in paragraph 2.9, page 7, that they set out the reasons of principle and policy which support the maintenance of the rule.
GLEESON CJ: Presumably, there are quite a significant number of individuals who have been made bankrupt or corporations who have been wound up on judgment debts established by orders of the Federal Court made without jurisdiction.
MR JACKSON: Indeed, that is so, your Honour, yes.
GLEESON CJ: What would be the position, however, if today an application for a sequestration order were made against a person, the bankruptcy notice being founded on a judgment debt where the judgment was without jurisdiction in the Bankruptcy Court? Could that point be raised or would that constitute an attempt to make a collateral attack on the judgment?
MR JACKSON: Your Honour, I was going to say it is a - - -
GLEESON CJ: I said in the Bankruptcy Court. I meant, of course, the Federal Court.
MR JACKSON: Yes. Your Honour, could I say that there is an instance to which I was referred today by my instructing solicitor where that happened and the challenge in the bankruptcy proceedings failed. Now, your Honour, it may be a "nice" question whether that is or is not a collateral attack. It probably would be, in our submission.
GLEESON CJ: It bears on the question raised by Justice Hayne, I think, as to whether there is some broad principle that covers all this or whether you need to attend to the particular issue that arises in order to determine whether or not the judgment is ineffective, for what purpose.
MR JACKSON: Your Honour, I would not debate the proposition that one needs, in effect, to look at each case but all I am seeking to say is that there is a broad proposition. The broad proposition is that the decision is one which is binding until set aside and what effect that has on a particular case.
McHUGH J: Yes, I know, but Chicot is a sort of halfway house in the development of the American doctrine. They start off with avoid ab initio doctrine and then when they get to Chicot they say we will not hold that they are void ab initio and then, finally, in the 1970s when you get to cases like Mapp v Ohio and Lemon v Kurtzman and Linkletter's Case and cases like that, they introduce the doctrine of prospective invalidity which in Ha we would not have a bar of.
MR JACKSON: Your Honour, I appreciate that is so but the relationship, the situation that exists here is the situation as in Chicot. There is no prospective invalidity.
KIRBY J: But in so far as you appeal to American doctrine, if it has been reconsidered in the United States we have to also reconsider how helpful that is to us.
MR JACKSON: Your Honour, if the only alteration is one which resulted in a doctrine which is not accepted here then the position really is that - and, your Honour, no one here is seeking prospective overruling or seeking to overrule a decision of the court saying there is no prospective overruling.
GUMMOW J: Chicot seems to have been most recently applied by the ninth circuit in Wong in the United States in 1998, in 134 F3d 381 which seems to have treated it as alive and well.
MR JACKSON: Your Honour, it still has, if I may use the expression, some lifeblood, perhaps. Your Honours, I was going to refer to Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651; (1999) 91 FCR 423. The particular passage to which I wish to refer was at the bottom of the page. What is set out in the last paragraph on the page, you will see a number of propositions were not in dispute. Your Honours will see the proposition that was not in dispute being set out first. I mention that because you will see at the bottom of page 429 a reference to some observations of Justice Finkelstein in Australia & New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367. May I take your Honours to that briefly where he endeavours to summarise the United States' position. Your Honours will see at page 380, between letters E and F, he said:
there is a more fundamental objection to the making of the stay order.
And, having referred to Gould - Wakim not having been decided at that stage, said, about letter F:
Even if these provisions are ultimately declared to be unconstitutional any order made by the Federal Court in reliance on them is nevertheless a valid order unless set aside on appeal or quashed by direct review. -
various cases were referred to -
Further, the steps taken and the relations brought about as a consequence of any order made by the Federal Court in the exercise of jurisdiction under these provisions, even if unconstitutional, will not be rendered ineffective. One reason for this is that an order of a superior court is valid until set aside and a declaration that a statute pursuant to which that order was made is unconstitutional will not affect the validity of the order made on reliance in that statute.
Then he referred to the availability of res judicata. Your Honours will see, then, at the top of the next page a reference, of course, to the fact - it is the first new paragraph on page 381:
This does not deny to a person who is a party to a proceeding the right directly, but not collaterally, to challenge the order -
and your Honours will see that elaborated upon through the remainder of that paragraph.
KIRBY J: Is the theory behind this that the statute power comes from the Parliament and the judicial power comes from the court? If the court has exercised the power and is a validly constituted court, then it gains its authority from that fact. It does not need for that order to trace it back to the original source of the power setting up the court and providing for the legislation? That seems to be what Justice Finkelstein says after citing those two American cases.
MR JACKSON: Yes. It may be that in the way your Honour put it to me that one would add perhaps a qualification about it not being necessary to go back in relation to the aspect when your Honour said it is not necessary to go back to the legislation of establishing the court. One might have to do that. Justice Callinan asked this morning were there any decisions dealing with whether the Federal Court was exercising federal jurisdiction in deciding whether it had jurisdiction.
CALLINAN J: In a failed attempt to invoke the jurisdiction, yes.
MR JACKSON: Yes. Could I say two things. The first is, our learned friends from New South Wales have referred to some cases which touch that point in their written submissions in paragraphs 2.6 and 2.7 but may I go also to a decision of this Court in DMW V CGW [1982] HCA 73; (1982) 151 CLR 491. In that case in the judgment of the five Justices at page 507 - could I preface what I am about to say by saying their Honours do not say that jurisdiction is federal but that is what they seem to mean. If your Honours go to the first new paragraph on page 507, their Honours said:
The jurisdiction of the Family Court is limited, in relation to matters dealing with the custody of children, to children of a marriage. Nevertheless the grant of jurisdiction must carry with it the power to determine the existence or otherwise of facts upon which its jurisdiction depends. If the Court wrongly decides such a question then that decision will be subject to the prerogative writs or the decision will be subject to appeal. It cannot simply be ignored. So long as the order stands, the effect of the provisions of the Family Law Act 1975 (Cth), as amended, conferring exclusive jurisdiction will deny the existence of jurisdiction in another Court - - -
Now, the Family Law Act 1975 , of course, was the enactment that did not just make provision for substantive family law but also was the provision which established the Family Court and gave it its jurisdiction. If I could go also to page 504, Chief Justice Gibbs, at the bottom of the page - - -
CALLINAN J: Mr Jackson, just before you go on, if I might ask you this, in the middle of that paragraph their Honours said:
So long as the order stands, the effect of the provisions of the Family Law Act (Cth), as amended, conferring exclusive jurisdiction will deny the existence of jurisdiction in another Court -
One, of course, accepts that but what about before the order is made another court would have a like jurisdiction to determine whether the matter was within its jurisdiction or not, for example, the State Supreme Court, would that be correct?
MR JACKSON: Well, your Honour, leaving aside any question of exclusive jurisdiction, perhaps.
CALLINAN J: Yes, yes.
MR JACKSON: Yes. Your Honour, leaving that aside, the situation which would be likely to result would be if there was a judgment of a Supreme Court which was at a stage capable of giving rise to a res judicata, then so be it. That is what was adverted to by Justice Finkelstein.
CALLINAN J: But, Mr Jackson, it cannot be the situation that the Supreme Court, for example, could be denied the jurisdiction to decide whether the matter was within its jurisdiction or not. It would have that jurisdiction in the same way as the Family Court would have the jurisdiction, if somebody were asserting in the Supreme Court that the matter was within the Supreme Court's jurisdiction and the not the Family Court's jurisdiction.
MR JACKSON: Your Honour, I do not know that I am disagreeing with your Honour, with respect. All I am saying is that a time may come when, for example, in the Supreme Court, the decision of the Supreme Court on the question of jurisdiction is one that would be binding on the parties to it, and would then affect the way the proceedings might be conducted elsewhere.
CALLINAN J: Yes. It is really talking about the situation before there is a decision in any court.
GAUDRON J: May it not have something to do with Kakariki-type inconsistency, depending upon whether the jurisdiction of a Federal Court has been invoked to do it, and if it has been invoked, there may then to that extent be an operational inconsistency if there are proceedings in the State court.
MR JACKSON: Your Honour, it may occur in some cases and it will depend upon, essentially, the effect of the con-stating statute of the Federal Court - - -
CALLINAN J: But would that mean that a Federal Court could have exclusive jurisdiction to decide in some matters that State courts did not have jurisdiction, even if the State courts did have it, in fact.
MR JACKSON: Well, it may, your Honour, yes.
CALLINAN J: It would be an unlikely result, would it not? It would mean that the Federal Court or the Commonwealth legislature could abrogate to itself the right to define jurisdiction away from the State courts.
MR JACKSON: The issue certainly has arisen and it has arisen in circumstances where, for example, proceedings were instituted, say, in the Supreme Court of South Australia, on the one hand, and the Federal Court of Australia on the other, and orders have been made by the Federal Court staying proceedings in the Supreme Court - like proceedings, I might say. Your Honours, I had - - -
GLEESON CJ: Staying or restraining? Restraining the parties from - - -
MR JACKSON: Yes, your Honour, restraining the parties, perhaps I should have said, yes. I am sorry, I am speaking from recollection in saying this. The matter, as I recall it, did not come in the end to this Court. But - - -
GAUDRON J: Is that not what happened in Coast Securities and Bargal and it did come to this Court?
MR JACKSON: Yes, of course, your Honour.
GAUDRON J: And it did come to this Court?
MR JACKSON: Yes, quite, your Honour, but that was in circumstances where there was exclusive jurisdiction in the Federal Court. But the case to which I was adverting was one which took place after the abolition of the exclusive jurisdiction in the Federal Court. And, your Honours, I will accept the proposition that if you had the Trade Practices Act 1959 conferring jurisdiction on the Federal Court and on the Supreme Court, that there must be a real question about the propriety of one of the courts in the Federation of equal status, relevantly, and with the same jurisdiction conferred, restraining the parties from seeking the jurisdiction of another court, equally exercising a federal jurisdiction.
GUMMOW J: But that is entirely a federal question.
MR JACKSON: Yes, your Honour.
GUMMOW J: It is a debate about federal jurisdiction.
MR JACKSON: Indeed, your Honour.
GUMMOW J: There being two receptacles.
MR JACKSON: And, your Honour, the situation which appears in a case like that is simply that the Parliament has chosen to give jurisdiction to two courts.
McHUGH J: But does it not come to this: if your argument is right, that these ineffective judgments, for example, are invalid until set aside, then section 6 of the Act, purporting to declare the rights and liabilities of parties, are inconsistent with the order.
MR JACKSON: Well, yes, your Honour, that is why it is - that is one of the points that we seek to make. And that is why we say, what it has done is to set up a parallel regime. And, your Honours, could I just go back for one moment to DMW v CGW.
McHUGH J: That is why that passage in DMW is in your favour, is very much so, is it not, so far as section 6 is concerned?
MR JACKSON: In our submission, yes. The last thing I want to say about DMW is at the bottom of page 504 in the last three lines, Chief Justice Gibbs said:
Nor can the Supreme Court ignore the existence of the order -
that is the order of the Family Court:
it may prove to be beyond jurisdiction, but the rule which allows the judgment of an inferior court to be impeached in a collateral proceeding has no application, since the Family Court is a superior court; the order will be valid and binding until it is set aside or varied: see Cameron v Cole.
Your Honours, the point to which your Honour Justice McHugh referred a moment ago about section 6 is one that we have dealt with in a number of passages in our written submissions. I shall not go back to it.
May I conclude our submissions by simply going to two passages in our written submissions. The first is in paragraph 36 and, your Honours, we will simply - many of the things that are here I think I have said in passing and we would simply refer your Honours to that. And, finally, your Honours, to paragraphs 42 through to 46 on page 24 where we seek to set out the possible consequences of invalidity. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor for Queensland.
MR KEANE: If the Court pleases, we seek to make oral submissions in relation to the relevance of the decision in Humby and to make the submission that it does afford support to the validity of the State Jurisdiction Acts, including section 7 of those Acts. We do not seek to make submissions in relation to the void/voidable controversy. In that regard our learned friends for the States of Victoria and South Australia will make submissions in relation to the contention that judgments of the Federal Court in State matters made in reliance on the cross-vesting legislation are void, not valid until set aside. In essence, that is because the only semblance of jurisdiction was denied by the Constitution.
The result, so it is said, which the Constitution requires must prevail over the common law rules engaged by the statutory description that the Federal Court is a superior court of record. Our learned friends for the Commonwealth, with the State of New South Wales, will make submissions to the effect that the judgments of the Federal Court in State matters, made in reliance on the cross-vesting legislation, are effective or valid until set aside. Nevertheless, they submit that the State Jurisdiction Acts do not in any substantial way impair the federal judicature or collide with the Federal Court of Australia Act. The question is whether the State legislation which declares rights in respect of State matters in relation to which the Constitution denies jurisdiction to the Federal Court can be said to impair the federal judicature or be inconsistent with the Federal Court of Australia Act because judgments made contrary to the Constitution remain on the Federal Court record.
The contention advanced by New South Wales and the Commonwealth being, if I might paraphrase it simply, that the decisions of the Federal Court in State matters made on the only basis that the cross-vesting legislation was effective are infirm; they are affected by infirmities which may fall within a range. As Justice Hayne has indicated earlier, there may be different consequences arising in different contexts but, to say the least, if a judgment is apt to be set aside ex debito justitiae when a party seeks to take advantage of it, one can say that that judgment is, to say the least, infirm. The effect of the legislation of the States is to make firm and effective rights of parties.
The starting point of that legislation, which should not be put into the background, is the failure of the cross-vesting scheme whereby State Parliaments sought to legislate to empower the Federal Court to determine State matters. Constitutionally those matters could not be resolved and therefore were not effectively resolved, whatever the range of infirmities may be, whether it is a broad range or a narrow range, by decisions of the Federal Court. It may be that occasionally there may be some operational inconsistency but that, in our respectful submission, is not the test of the validity of the legislation.
Of course, one does also start from the position that the legislation declares rights which, at the time that the legislation operates in respect of those rights, are the same rights as the rights ineffectively determined by Federal Court judgments.
McHUGH J: That may be, but that is just a ground for invalidity, is it not? If the true theory be that the orders of the Federal Court - these ineffective judgments stand and have legal effect and declare the rights of the parties, how can a State Parliament legislate to also say, "Well, you get your title to those rights from this Act of this Parliament". That is what this State Jurisdiction Act purports to do.
MR KEANE: Because, your Honour, the Federal Court could never do it.
McHUGH J: It could never - - -?
MR KEANE: It could never effectively do it.
McHUGH J: But it has done it - - -
MR KEANE: It has done it and it might be that those orders are valid until set aside but they are apt to be set aside ex debito justitiae.
McHUGH J: Well, they can be enforced. If they stand, they can be enforced unless set aside. They cannot be impugned in collateral proceedings.
MR KEANE: If there is an attempt to enforce them they may be met by an application for prohibition.
McHUGH J: They may be, but they are still on foot and until they are set aside they declare the rights of parties between themselves.
MR KEANE: Your Honour, I do not want to buy into that.
McHUGH J: I know you do not.
HAYNE J: We might have to.
MR KEANE: Quite. On the other hand, your Honours might take the view that you urge by the Commonwealth and New South Wales that there is a level of infirmity about those orders which justifies the States making a declaration to make effective determinations of the rights of parties and then to make provision for those determinations to be the subject of enforcement and appeal within the State system.
KIRBY J: You see appeal as part of an integrated package.
MR KEANE: Yes, your Honour.
KIRBY J: So do I at the moment.
MR KEANE: Your Honours, we want to say something about your Honours' concerns to the effect of that on the integrity of the Supreme Court. We will come to that if we may. If we may then go to the decision in Humby129 CLR, and we will need to only go to a couple of passages. We note first that its correctness is not challenged and we submit that it does afford support to the validity of the State Jurisdiction Acts. Here, as in Humby, the legislation does not seek to affirm or confirm the decisions which were made without jurisdiction. It, in terms, declares rights, by reference to the terms of a judgment which is ex hypothesi ineffective and accepted as such. Its relevance is historical as being descriptive of the rights and duties of the parties.
McHUGH J: When Mr Jackson took us to Humby the thought was going through my mind that the Court in Humby must have treated the orders of the Supreme Court of South Australia as being of no force or effect, otherwise it seems to me that it could have raised the very question that is raised here.
MR KEANE: Certainly, your Honour, in the judgment of Justice Stephen, his Honour actually says ineffective judgments which were attempts to exercise the jurisdiction and he says they retain that character. They retain the character of ineffective judgments. Nothing in the State legislation purports to alter the character whether they be voidable until set aside or otherwise or whether an attempt to enforce them would be met by prohibition.
McHUGH J: I know, but I have difficulty with Mr Jackson's argument on section 6 once you hold that the orders are of no force and effect. It seems to me Humby is very difficult to distinguish although this case is dealing with State legislation. Humby is dealing with federal legislation. But once you accept that the orders of the Federal Court in this case or in Humby's Case, orders of the Supreme Court have force and effect, then there seems to be some important 109 questions arise which, on that figure, really get to Humby.
MR KEANE: Your Honour, as to our learned friend's suggestion that Humby is distinguishable, the first basis that was advanced was that there, as appears from the bottom of page 243 in the judgment of Justice Stephen and going over the page, there is recognition of the concession that was made that the Commonwealth Parliament had ample power to legislate in any manner, that is to say, it might legislate for divorce otherwise than by judicial decree.
If we can pause there, in so far as that sought to indicate a basis for distinguishing the case, here we submit that the powers of the States are not in question in so far as what the States have purported to do is to make laws under which, amongst other things, they have sought to vest powers to decide controversies arising under State law in the Federal Court and that attempt was ineffective. This is an attempt by the States to legislate to deal with State controversies and the consequences of those State controversies which were not able to be dealt with by the Federal Court.
KIRBY J: Yes, but in a rather unorthodox way by, as it were, a parliamentary judgment without hearing both sides and done by the Supreme Courts which are the mainstay of the court system of the country. I mean, the question is if it can be done in this case, can it be done in other cases. That is what we have to keep our eye on. I have to.
MR KEANE: Can we say as to that here this legislation does not seek to take anything away from the Supreme Courts.
KIRBY J: Well, it takes away their right to start afresh and to hear both parties and to lend the authority of the Supreme Court of a State of Australia to a determination. It does not happen that way. It just comes down from the Federal Court and may be registered. It becomes a judgment without anybody being heard. It is a completely novel idea to me who sat in a Supreme Court for 12 years.
MR KEANE: There were no proceedings pending in the Supreme Court. Relevantly, the need for this legislation arises because the relevant proceedings were pending in another court.
McHUGH J: Yes, I know, but as Justice Kirby put it this morning - I mean the Parliament has just simply legislated and it has then said, "This is a judgment of the Supreme Court" and then this Court is supposed to entertain an appeal from that and if it can do it in this case, why can it not do it any sort of case?
MR KEANE: One needs to take the appeal position in steps.
McHUGH J: Yes.
MR KEANE: What happens is, under section 6, the judgment at first instance, if that is the relevant ineffective judgment, is given the same effect, so far as its rights and duties are concerned, as if it had been a valid judgment of the Supreme Court. Section 7 provides for a right of appeal against that declared state of affairs. The right of appeal to the Full Court of the Supreme Court, or the Court of Appeal in those States that have them, would then result in a judgment of the Supreme Court. That judgment, in our submission, would be a judgment within the meaning of the term used in section 73 of the Constitution.
McHUGH J: I appreciate that but, nevertheless, the judgment of the - there is only one Supreme Court and it has divisions. The Court of Appeal is a division of the Supreme Court and, although it is unlikely, nevertheless, it is open to this Court, always, to grant leave to appeal from an order of the court constituted by a single judge, is it not?
MR KEANE: Your Honour, to the extent that the state of affairs declared in terms of deeming there to be a judgment of the Supreme Court, to the extent that that deeming does not meet the requirements of section 73 of the Constitution, then there is no right of appeal but there is not an attempt to unconstitutionally modify the operation of section 73.
McHUGH J: But why is there not? When section 73 talks about "judgment, decrees and orders" it must be talking about judgment, decrees and orders as a result of the exercise of judicial power. Why is it not a necessary implication of section 73 that no State Parliament can deem something to be a judgment or order of a Supreme Court when it is not the product of an exercise of judicial power?
MR KEANE: Well, your Honour, what section 6 does is declare rights to be the same as if they had been a valid judgment, that is, to do the same as parliaments, both State and federal, have been - this Court has accepted that parliaments, both State and federal, may declare rights in that way, even where there is pending litigation, the Builders' Labourers Case, most recently, Bachrach v State of Queensland, and that is a point that I would make, with respect, in response to your Honour Justice Kirby in relation to the matters your Honour was putting to us, that the parliaments can declare rights. Here there has been a declaration of rights in respect of proceedings that were not pending in the State Supreme Court. They have not taken something away - - -
KIRBY J: Yes, but it is dragooned the Supreme Court. I thought this was one of the causes of the American Revolution, the interference by legislatures in the decisions of the courts which are independent and should be reached by judges after hearing both parties on their legal and factual merits. Instead, you have dragooned Supreme Courts of the States and required them, in effect, to enter a judgment made in another place, heard by other people, never having seen the litigants, and plugged that into the constitutional judicature of this country. I know you have a problem - - -
HAYNE J: You accepted it - - -
KIRBY J: I am sorry.
MR KEANE: I am sorry, your Honour. Your Honour, to answer your Honour's question, what your Honour says, with the greatest respect, fails to recognise that the failure of the cross-vesting scheme is not a matter of background, it is why this thing has happened. When one is talking about the constitutional power of the States to legislate in respect of State matters, one must recognise, with the greatest respect, that they are not purporting to declare rights on the basis of some frivolous statement by some - - -
KIRBY J: I realise that, but a principle has to be found that is immune from misuse in other circumstances which can be marginally advocated but which do not come with the reasoning, with the factual reasons that lie behind this legislation.
MR KEANE: Perhaps one response to what your Honour puts to us, and perhaps not a satisfactory one - - -
GUMMOW J: Well another may be the long history of the Foreign Judgments Acts, the registration provisions of the State Foreign Judgments Act.
HAYNE J: In any event does this Act require registration of judgments? In what sense does it dragoon the Supreme Court?
MR KEANE: No, quite, your Honour.
KIRBY J: You say that a Supreme Court judge under "may" can refuse too?
HAYNE J: Under section 11 in relation to pending proceedings other issue arise, but I understood your submissions to be directed to concluded proceedings and judgments entered in those. Have I misunderstood you, Mr Solicitor?
MR KEANE: No, your Honour. Your Honour is quite right. We are presently making our submissions in relation to section 6.
McHUGH J: Yes, I know, but I know how you seek to rely on builders labourers cases and so on in relation to section 6, but it rather overlooks the effect of section 7, does it not, that argument? You cannot divorce section 7 from section 6.
MR KEANE: No, your Honour. Can we come to that now. The other thing we wanted to say in relation to Humby is that in Humby there were two relevant provisions, section 5(3) which declared rights, and section 5(4) which declared that the ineffective decrees should have effect as if they were judicial orders. Your Honours will find the text of section 5(4) set out at page 242 in the judgment of Justice Stephen. Your Honours will see that it says:
All proceedings, matters, decrees -
et cetera -
are, by force of this Act, declared to have the same force and effect after the commencement of this Act, and to have had the same force and effect before the commencement of this Act, as they would have, or would have had, if the purported decree had been made as mentioned - - -
McHUGH J: Was section 5(4) under challenge in Humby, because its validity seems to - - -
MR KEANE: Yes.
McHUGH J: Was it?
MR KEANE: Yes it was.
McHUGH J: And this Court upheld it?
MR KEANE: Yes. Your Honour will see that Justice Stephen does that at page 243:
What the two sub-sections do is this: -
then he deals with what subsection (3) does.
Sub-section (4) -
this is halfway down page 243 -
deals similarly with all proceedings, matters -
et cetera -
It does not validate them but instead attaches to them, retrospectively, the same force and effect as would have ensued had the purported decree been made by a judge of a Supreme Court.
The applicant contends that sub-section (4) is ultra vires -
and so forth. Justice Mason deals with the matter directly at page 249 in a passage which I particularly wanted to refer your Honour Justice McHugh to in relation to section 7(2). The last paragraph on the page when his Honour says:
Section 5 recognizes that the purported decree is of no force and effect; sub-section (3) then proceeds to declare the rights of the parties and sub-section (4) gives to the decree the effect it would have had, had it been a judicial order, not for the purpose of making it a judicial determination -
and we emphasise that, here not for the purpose of making it a judgment of the Federal Court -
but so as to bring the rights declared by sub-section (3) within the scheme and provisions of the Matrimonial Causes Act.
McHUGH J: That does really seem to be a triumph of form over substance, I must say. What is the purpose of doing it otherwise than to enforce them as judgments of the Supreme Court sitting in respect of the matrimonial causes division? You could execute but would you be able to invoke the execution powers? Would you be able to take out an order for contempt?
MR KEANE: As his Honour says, the purpose of it is to bring it within the scheme of the Act, no doubt including provisions such as those of which your Honour speaks, and also and importantly, the provisions in relation to appeals. Section 92 of the Matrimonial Causes Act, which was part of the scheme and provisions of the Matrimonial Causes Act 1971 to which Justice Mason was referring, provide - - -
KIRBY J: As Mr Jackson pointed out, this is all within the one polity. This is the federal - - -
MR KEANE: Quite. But, your Honour, with the greatest respect, that is not a point of distinction. Here the relevant matters were always matters that were matters of State jurisdiction. What the legislature is doing is making provision in relation to matters that were always matters of State jurisdiction.
KIRBY J: But it is doing so by reference to an order found to rest upon an invalid federal statute and doing so by the formula is taken to be a judgment of the Supreme Court. If that can be enacted once, it can be enacted a hundred times. That is a matter of legitimate concern.
MR KEANE: Your Honour, perhaps one needs to be alive to the concern which your Honour expresses and to give effect to it in those cases where one can see - - -
KIRBY J: That is the dragooning I am talking of.
MR KEANE: Well, where one can see a real dragooning which is - - -
KIRBY J: It is. The judges had nothing to say to it. The judges are silent.
MR KEANE: - - - which is inconsistent with the integrity of the Supreme Court. That is not the conclusion one reaches readily. It is certainly not a conclusion one reaches by looking at legislation which has sought to preserve the efficacy of parties' rights and duties by reference to decisions arrived at after hearing by judicial officers, albeit rendered ineffective through no fault of the parties. This is not a case where someone is seeking to attribute to the Supreme Court a decision by the Federal Court, much less some kangaroo court or tribunal of the kind which might legitimately concern your Honour.
McHUGH J: I would have thought, notwithstanding what Justice Mason says at the bottom of 249, 250, it is an interference with the judicial power of the Commonwealth.
MR KEANE: Your Honour, as to that, with respect, there was relevantly no judicial power of the Commonwealth involved in the matters which the State is purporting to declare rights and duties.
McHUGH J: But the Commonwealth power in relation to State governments is to invest them with judicial power. Now, it is said in section 5(4) of the Matrimonial Causes Act that these invalid decrees "have the same force and effect" as if they were decrees of the Supreme Court. Now, what does that emphasise?
MR KEANE: For the purposes of bringing them within the relevant regime of enforcement and appeal. That happened to be a Commonwealth regime. Here, these provisions have been enacted to bring these parties within the State regime because the Federal Court regime cannot make effective provision for them and they are therefore being brought within the State regime to try to salvage something from the wreck, as it were.
In further answer to your Honour Justice Kirby, can we take you as well to what Justice Mason says over the page where his Honour deals with - or at the beginning. It begins really at the bottom of 249 with this question of the usurpation of judicial power. He goes over the page and refers to "the judgment of the Judicial Committee in Liyanage v The Queen" which is the sort of case which, no doubt, with respect, your Honour has in mind. His Honour said:
as the judgment of the Judicial Committee in Liyananage v. The Queen makes plain, a concept which is not susceptible of precise and comprehensive definition.
That is a "Usurpation of the judicial power" -
In the context of the Commonwealth Constitution, it must signify some infringement of the provisions which Ch. III makes respecting the exercise of the federal judicial power. What that infringement is in the instant case, the argument did not condescend to make clear.
It is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power. In Nelungaloo Pty. Ltd. v. The Commonwealth the validity of the Wheat Industry Stabilization Act (No. 2) of 1946 was upheld, notwithstanding that it validated an order for the acquisition of wheat the validity of which was a matter in issue in proceedings pending at the time when the statute was enacted. In that case the statute affected antecedent rights in issue in the litigation. Here the rights declared or created by the statute, although in issue in pending proceedings, were not rights antecedently existing; they are of a kind which ordinarily comes into existence by virtue of a judicial determination in a matrimonial cause. In my view - - -
KIRBY J: Can I just ask you to pause there, "not rights antecedently existing". As I understood it, an argument that has been presented is that it is antecedently existing in an invalid order of the Federal Court not yet set aside and, indeed, that is the trigger that gets you into the State Act. There has to be an invalid order, ineffective judgment as it is called.
MR KEANE: Your Honour, the rights relevantly antecedently existing, in our submission, are the rights between the parties.
GUMMOW J: Which would have been tried in the State system.
MR KEANE: Which would be tried in the State system, but were not.
McHUGH J: But here in Humby, this argument of counsel which Justice Mason rejected does not seem to me to address the real question in the case. The real question is, what power did the Parliament have to enact subsection (4)? Now, it is one thing to say "Well, they are just legislating for divorce rights, they can do that". But it seems to me the sophistry of a high order to say that is what the effect of subsection (4) is, it is purporting to say "What is an order of the Supreme Court of the State?", and it seems to me that section 77(iii) just does not authorise that.
MR KEANE: Your Honour, and bearing in mind that no one has suggested that Humby is, in any way wrong, in our submission, the decision is correct and what his Honour has said is correct on the footing that the Commonwealth have power to make laws, both giving jurisdiction and in relation to divorce. And what it did was declare rights - one step, and in the next step say "And the rights which we have declared as being rights effective as if they had been declared at a particular level in the hierarchy can be treated as rights declared at that level within the hierarchy for the purpose of enforcing them".
McHUGH J: I know and that is the way the court seems to have addressed it. But, really, on that view subsection (4) is really superfluous. The only purpose of subsection (4) is to make these rights enforceable as orders of the Supreme Court of South Australia.
MR KEANE: Well, your Honour, it may be on that view that section 7 is superfluous as well, in the sense that section 6 declares rights as if they had been a valid judgment of the Supreme Court and that might attract the rights of appeal.
McHUGH J: It might be superfluous in one sense, but it is there because it serves the purpose of avoiding the commencement of quite independent proceedings. If section 6 just operated on its own, you would have to go and commence fresh proceedings. You would not be able to rely on the earlier proceedings in the Federal Court. Your rights would be declared by section 6 and you would have to start a completely new action completely divorced from - - -
MR KEANE: Of course, your Honour, the purpose of a provision like that is the wholesome one. It is not to prevent people getting a determination by a judge.
McHUGH J: I am all for the policy of this section - of this Act, this legislation; the question is, is it done constitutionally?
MR KEANE: Quite, your Honour, absolutely. Really, I suppose, I am directing that observation to the concern Justice Kirby has raised with us earlier.
GAUDRON J: Even if the Court was wrong with respect to subsection (4) in Humby, and I think it might have been myself, that really does not seem to impinge on section 7 because here you have a State Parliament only fettered by Chapter III in so far as - - -
MR KEANE: In the Kable sense.
GAUDRON J: In the Kable sense - passing a law with respect to a matter in respect of which the Federal Court has acted without jurisdiction. It seems to me that that being so - put Kable to one side - it can only be attacked on the basis of 109 inconsistency.
MR KEANE: Yes.
GAUDRON J: Is there something wrong with that logic?
MR KEANE: No, your Honour, and just in relation to what your Honour has put to us, can we simply refer to the last sentence in the passage at page 250, in the passage we were just reading, at about halfway down the page where his Honour says:
In my view there is not enough in these circumstances to support the conclusion that there has been a usurpation of judicial power. Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.
We would say a fortiori, with respect, where Chapter III has only a limited role to play in constraining the powers of State Parliaments, that limited role being in the rather indirect way in which, in accordance with Kable, it prevents the State Supreme Courts being made inappropriate receptacles of federal jurisdiction.
GLEESON CJ: Reverting to the matter of the position of the State courts and putting Chapter III to one side at the moment, how are awards of commercial arbitrators enforced in Queensland?
MR KEANE: Your Honour, under the Commercial Arbitration Act 1984 - - -
GLEESON CJ: Are they treated as judgments of the court and enforced in that way?
CALLINAN J: They used to be made a rule of the court under the old legislation - - -
MR KEANE: Yes, they did. Your Honour, I would have to check. I rather think that under the Commercial Arbitration Act, which is in the same terms as the Commercial Arbitration Acts of the other States, I think they may be registered.
GLEESON CJ: In the case of the Commercial Arbitration Act of New South Wales they are enforced in the same manner as a judgment or order of the court and judgment is entered in terms of the award.
MR KEANE: Your Honour, I think that is the same in Queensland in the Commercial Arbitration Act 1959 .
GUMMOW J: Section 6(3) of the Foreign Judgments Act - which I think is the various States - of 1973 - I am looking at the New South Wales one - has the same words. It is registered and then it is enforced as if a judgment originally given in the Supreme Court on the date of registration.
MR KEANE: Yes. This form of proceeding, and we would say it is a matter of substance, not of form, is well recognised.
KIRBY J: But that is registering something that has come from outside and it is not taking it to be a judgment of the Supreme Court.
MR KEANE: But it is permitting it to be enforced as if it were.
McHUGH J: I know but we may not for the moment reach it, but is not there a line of cases - is not there a case called Moor Line v The President of India where this Court held it had no jurisdiction under section 73 on appeal from Western Australia because there was some sort of case stated which was really an advisory opinion in respect of an arbitration matter. Do you know that? I think it is around about 100 CLR, or 99.
MR KEANE: I have to confess I am not familiar with the case, your Honour.
McHUGH J: I think this Court held it had no jurisdiction because there was not a judgment, decree or order for - - -
MR KEANE: Quite. I did not want to ask your Honour a question but I was going to say one suspects that the answer may have been that there was not a judgment - - -
McHUGH J: Yes, that was the - - -
MR KEANE: - - -which would answer the description of a decree or judgment in section 73, and if that is the case then the consequence of it - - -
McHUGH J: I think it was an order of the Full Court in this particular case - of the Full Court of the Supreme Court.
GUMMOW J: It was [1958] HCA 24; 99 CLR 185, I think, or 212
MR KEANE: Your Honour, I take the point to be that because there is not something which in the constitutional sense can be recognised as a judgment, there is no appeal lies. If, in so far as, the legislative declaration in 6 does not answer that description and to the extent that an appeal does not lie, that is simply because there is not a judgment of the Supreme Court.
GUMMOW J: It is at page 212.
HAYNE J: That might be a lively question when it comes, or if it comes, to consider questions of appeal to this Court. In fact, it may throw some light on whether or not the appeal provisions are valid or invalid because of section 73. My prima facie approach was to think that section 73 would strike down any attempt to give a Supreme Court a power that could not be the subject of an appeal here but it may be that they are just simply saying, "Well, they can and there is no right of appeal".
MR KEANE: And, your Honour, the States cannot create rights of appeal. That is conferred by the Constitution - to this Court. That is conferred by the Constitution and to the extent that there is no right of appeal from legislative action, section 73 is not infringed and there is no invalid attempt to alter its operation. So far as the Federal Court orders - - -
KIRBY J: Can I just pause to say that that means that citizens who have gone to our courts who assumed that they would have the right of appeal through the Federal Court system but lost that by Wakim and they have not picked it up by this scheme, on that assumption.
MR KEANE: I am sorry, your Honour. So far as the Federal Court is concerned and so far as these orders are concerned, those rights of appeal remain but they attenuated in terms of the value of them to the citizens as they are. As we saw yesterday, there can be an appeal to the Full Court of the Federal Court which is then confronted with the choice as to whether it allows the appeal by reason of the want of jurisdiction and sets the judgment below aside or whether it dismisses the appeal on the ground that it has no jurisdiction either. Either way an appeal would lie to this Court from that order.
KIRBY J: But that is a pretty hollow question.
MR KEANE: Quite, your Honour.
KIRBY J: I am talking about appeals on the merits, a not unimportant thing that the Constitution preserves.
MR KEANE: Your Honour, I am not suggesting that it is not. The legislation does its best to provide for an order of appeals. To the extent that it cannot provide for an appeal directly from a single judge, that is nothing to gainsay its validity. It never could.
KIRBY J: You say it is nothing to gainsay its validity. The other point may be that it does gainsay its validity because this is inherent in the judicature that includes the Supreme Court and if you cannot do it, doing your best is not good enough. You have to go back and start again. Doing your best by the Constitution is not the standard.
MR KEANE: No, quite, your Honour, but if what one is concerned with is whether there has been an interference with judicial power, one starts by saying that is really Chapter III in the Federal Court. So far as the Supreme Courts of the States are concerned, it is something different and the question is whether what has been done is something which can be characterised in the way in which the legislation in Kable was characterised. So that while no doubt I was guilty of loose language in saying the legislature has done its best, what I perhaps should have said is the legislature has not made any provision which would be likely to attract the thunder of the Kable doctrines.
GUMMOW J: I should say that President of India is probably overtaken by Mellifont [1991] HCA 53; 173 CLR 289. Justice Brennan referred to it at 317, but of course he was dissenting.
MR KEANE: Yes. Mellifont's Case does suggest that what may be encompassed by the notion of judgment is broad but in this case, if what the Supreme Court does, for example, on appeal - if there is an appeal from the judgment which section 7(3) notionally brings into existence for the purpose of facilitating the right in section 7(2), if there is such an appeal, then there is a decision of the Full Court of the Supreme Court or the Court of Appeal, that would be, in our respectful submission, a judgment which would answer the description of a judgment within section 73.
KIRBY J: But Mellifont was a case where there was undoubted action of the judges in the Supreme Court.
MR KEANE: Yes.
KIRBY J: They heard, they sat, they heard argument, they listened, they gave decisions, but this is a case where Parliament has done it, taken to be a judgment - - -
MR KEANE: In relation to a decision by the Full Court pursuant to section 7(2), there would be a judgment where judges sat, made decisions, dealt with on a notional rehearing or on a rehearing, dealt with the judgment below and determined it.
So that, in summary in relation to section 7, our submission is that the provisions in section 7 are analogous with section 5(4) and those provisions in section 7 are necessary to facilitate an appeal from new rights, or are appropriate to facilitate an appeal from the new rights created by section 6. The genesis, in so far as they find their genesis in the Federal Court, that is a matter of historical background and description. Mellifont's Case, I am reminded, your Honours, also recognises that there may be no appeal from the Supreme Court to the High Court.
GUMMOW J: Because it may not be a matter.
MR KEANE: Quite.
GUMMOW J: The Supreme Court entertains many proceedings which do not amount to matters.
MR KEANE: That are not matters.
GUMMOW J: It has for a long time.
MR KEANE: Your Honours, if we can deal with some of the other points in our learned friend Mr Jackson's submissions in relation to distinguishing Humby. The conferral of rights of appeal from the legislative declaration of rights and duties by the State does not contradict the Federal Court in any way. To the extent that the order may be modified, that is the modification of something within the State system and the Federal Court order stands for whatever it is worth.
As to paragraph 41.1 of our learned friend's submissions, the State Jurisdiction Acts do not purport to convert the Federal Court orders into valid exercises of judicial power, much less of Commonwealth judicial power. Rather, the legislation is predicated on the acceptance of the invalidity or of the inefficacy of the attempt to confer jurisdiction on the Federal Court, and nor is there, as we have submitted, nor is the character of the legislation inconsistent with the decision of the court in Kable for the reasons that, put shortly, it takes nothing away from the Supreme Court and it does not declare legislatively the result of proceedings pending in the court in such a way as to render the court an inappropriate receptacle of federal jurisdiction.
Importantly, your Honours, in paragraph 41.2 of our learned friend for the defendants' submissions, the contention is made that the legislation in the State Jurisdiction Acts is legislation which purports to be legislation for the Commonwealth, for a different polity. In our respectful submission, that is not accurate, as is apparent from the terms of section 6. It is a declaration of rights of parties to a controversy arising under State law. That is apparent from the definition of "ineffective judgment".
In paragraph 41.5 of the defendants' submissions it sought to distinguish Humby on the basis that it was concerned with an order of an inferior court, which was invalid, while orders of the Federal Court are valid until set aside. For the reasons which both our learned friends for Victoria and South Australia and New South Wales and the Commonwealth urge, that is not a good point of distinction. In our respectful submission, it is simply wrong to say that the States are seeking to attribute an alternative or competing authority to orders of the Federal Court. The legislation does not speak to the Federal Court at all.
As to paragraph 41.3 of our learned friend's submissions, which deals with section 11 and describes it as effecting a unilateral removal - now we are going to section 11, your Honours, and dealing with section 41.3 of our learned friend's submissions. If one looks at section 11, one can see, without a great deal of trouble, in our respectful submission, that it is neither unilateral, nor is it a removal. The condition of its operation depends upon the making of an order by the Federal Court, the effect of which is to say to the parties that the Federal Court does not have the jurisdiction to determine the matter on the merits. Section 11 then operates to ensure that the controversy, which is a controversy arising under State law, can be dealt with and to ensure that under subsection (3)(b) a limitation provision cannot be invoked to meet the proceedings which commence in the Supreme Court.
Section 11, in our respectful submission, does not continue proceedings. The Federal Court has brought those proceedings in the Federal Court to an end. It does not give them a different life. By an order made under subsection (2) it treats the proceeding as a proceeding in the Supreme Court, the proceeding being the procedural arrangements whereby a matter in controversy is to be resolved. The State does not give, within section 11, an additional regime. There is no other regime which can deal with this controversy because section 11 operates on the footing that the Federal Court has correctly declined to do so.
Your Honours, there was some discussion of the decision in Stack v Coast Securities. We have a number of copies of the headnote and we have excerpted the relevant pages which we can hand to the Court.
The effect or the reason that we give those excerpts to the Court is to take the Court, firstly, to page 295, which is the third sheet, to draw the Court's attention to what is said in the last paragraph on the page which talks about the Federal Court exercising accrued jurisdiction and the point being made that the Supreme Court had exercised that which might answer the description of accrued federal jurisdiction. In relation to the point your Honour Justice Callinan raised, this passage and the passage which commences at 297 in the last paragraph and goes over the page, shows that where the Supreme Court's jurisdiction is invoked, the Supreme Court has jurisdiction to determine its jurisdiction and to proceed to exercise it, especially, a fortiori, in relation to that area which the Federal Court might be able to deal with only as accrued jurisdiction.
The point being made at 297 to 298 that where there is a concurrent or parallel attempt to exercise jurisdiction, that does not mean that either court is acting unconstitutionally. It simply means that, ultimately, this Court may have to decide which stays its hand.
Your Honours, we meant to hand up copies of section 92 of the Matrimonial Causes Act which contains the provision for appeal which section 5(4) of the legislation considered in Humby was apt to engage. Your Honours, those are our submissions, if your Honours please.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for Victoria.
MR GRAHAM: May it please the Court. Before going to our written submissions, may I take up two points that emerged in the course of argument this morning. One of those concerned section 11 of the remedial legislation, and in particular the provisions of subsection (3)(a) where the word "becomes" was subjected to some scrutiny. If I could just take the Court back a moment, the scheme of section 11 is, firstly, that there may be a relevant order made by a Federal Court. Secondly, an application may be made to the Supreme Court for the proceeding which has come to an end in the Federal Court to be treated as a proceeding in the Supreme Court.
GUMMOW J: Do you say the phrase to "be treated" in subsection (2) throws light on what then follows in subsection (3)?
MR GRAHAM: Indeed, so, your Honour. The court makes an order saying this proceeding shall be treated as a proceeding in this court. That enlivens subsection (3) which says that, what is indeed the fiction, that proceeding "becomes" the proceeding in the Supreme Court. But that, in our submission, is not, in effect, to convert or seek to translate or transmogrify the Federal Court proceeding into a State proceeding. What happens once an order is made under subsection (2) is that the State legislation becomes operative and a number of consequences follow within the State context. The proceeding becomes a Supreme Court proceeding; it must be recorded as such and may, presumably, be continued to a conclusion as such. But it is not correct, in our submission, to say that subsection (3)(a) is attempting to effect some kind of conversion of a federal proceeding into a State proceeding. Care is taken not to do that.
KIRBY J: But what do you say about 11(2) which says:
the proceeding be treated as a proceeding in the Supreme Court -
MR GRAHAM: We say, your Honour, that it would simply, if I may say so - I may sound like I am evading the question - it means no more than what it says, that so far as the parties to that proceeding are concerned and so far as the Court is concerned, the proceeding may be treated - - -
KIRBY J: It is a fiction.
MR GRAHAM: It is. Your Honour, I concede that, but it simply provides - - -
GUMMOW J: You want it to be, do you not? You want it to be a fiction?
MR GRAHAM: Yes.
GUMMOW J: You do not want to be turning up with your haversack and hauling causes out of the Federal Court.
MR GRAHAM: Precisely what we sought to avoid, your Honour, in putting this together. A challenge such as my learned friend, Mr Jackson, was obvious enough if that technique had been adopted so it was not.
Could I then say something about Kable and the concerns that have been expressed about it. Firstly, your Honours, it is important to remember that section 6 does not seek to affect the jurisdiction of the Supreme Court at all. Section 11 is concerned to enable the Supreme Court of a State to hear and determine a matter which was always properly within its own ordinary jurisdiction. There is no attempt in the Act anywhere to confer upon the Supreme Court some kind of extraordinary and inappropriate and incompatible jurisdiction.
What the Act is concerned with throughout, from end to end, was the concept of a State matter as defined in the 1987 cross-vesting legislation which, ex hypothesi, was a matter within the jurisdiction only of a State's court. The old legislation endeavoured to do something which the Court held could not happen and that was to enable the Federal Court to deal with what was purely a State matter. It was nothing extraordinary which was attempted to be done by this legislation as happened in the Kable Case.
Your Honours, if I can take up something that has obviously concerned your Honour Justice Kirby. We would say that that is as far as this Court needs to go in this case. If, in some future event, a State legislation were to enact legislation as far reaching, to use as neutral a term as I can find, as that in Kable, the Court would, no doubt, have to reconsider the question of how far the Kable doctrine went but we say nothing in this legislation enlivens that doctrine at all.
GUMMOW J: Now the history of the Supreme Court of Victoria, is that indicated in Professor Campbell's article in footnote 9 in your submissions?
MR GRAHAM: I confess I cannot recall but I think I can answer your Honour's question from memory. In 1852 the Victorian Parliament, then consisting only of the Legislative Council, enacted the law which gives the foundation of the Supreme Court of Victoria. Before that, and before separation, of course, the Supreme Court of New South Wales had jurisdiction throughout New South Wales including the Port Phillip district and as I understand it that court's jurisdiction is the product of the prerogative.
GLEESON CJ: Based on the United Kingdom Act of Parliament.
GUMMOW J: Yes, that is exactly what Professor Campbell said. She says there was no royal prerogative so they became worried and they had an Act which enabled the Crown to issue a charter.
GLEESON CJ: But the unusual thing about the Supreme Court of New South Wales is that it antedated the New South Wales legislature.
MR GRAHAM: Yes. I had taken his Honour Justice Kirby in mentioning prerogative in that context to be referring to that sequence of events. It is one with which I cannot claim a great deal of familiarity. But it is indeed the fact that the colony of Victoria enacted its own law largely due to impatience because of the fact that the Parliament of Westminster would not act in time and following separation it was necessary for a statute to be passed in order that the newly formed colony should have a Supreme Court.
If I can turn then to our outline of argument. Could I take the Court, firstly, to paragraph 5 where we set out our principal submissions in summary form and if I can direct the Court to subparagraph (3) where we say any order made by a Federal Court in reliance upon the cross-vesting scheme or the corporations cross-vesting scheme is "for constitutional purposes ... a nullity" and any effect upon such an order by the State jurisdiction legislation does not result in the invalidity of that order. Your Honours will see a footnote reference to your Honour Justice McHugh's judgment in Re Wakim. Now, I propose to expand upon that topic at some little length later on but I should simply signal it as a significant part of our oral submissions to this Court.
GAUDRON J: If you take that view, Mr Solicitor - just to give you something to think about -how can the provisions of the remedial legislation stand up with respect to appeals? I mean, how can there be an appeal about a nullity? I can see the advantage of the argument for the purposes of section 11 in its application to proceedings which have not proceeded to judgment at first instance, if I can use that neutrally, but how can 11(2) then operate to transfer appeal proceedings to the Full Court of the Supreme Court or how could section 7(2) operate?
MR GRAHAM: Your Honour and I are both using the shorthand term in saying "transfer" and that is convenient enough.
GAUDRON J: But if it is a nullity, unless you read something into the constitutional purposes in that reference there - - -
McHUGH J: There is a line of cases which say you can have a right of appeal even though the proceedings are a nullity. They are referred to in Calvin v Carr in the Privy Council and one of them is a case called Director of Public Prosecutions v Crane, I think, which is around (1921) AC, where in a criminal proceeding the trial was held to be a nullity. Nevertheless, it was held there was a right of appeal from it. I think there is a case in 1944.? Anyway, they are referred to in Calvin v Carr in the Privy Council.
MR GRAHAM: I have a dim recollection of the earlier case, your Honour. If I could attempt an answer to your Honour Justice Gaudron's question, what would happen under section 11 if there were a pending but undetermined appeal from a single judge to the Full Court of the Federal Court, the Federal Court could make the order presupposed by section 11(1) and then the steps under the later subsections of section 11 could be taken in relation to appeal and the Court of Appeal or the Full Court would determine that appeal.
GUMMOW J: What order would the Court of Appeal make on the appeal?
MR GRAHAM: I am sorry, your Honour?
GUMMOW J: How would the Court of Appeal in Victoria, say, dispose of such an appeal? What orders would it set aside?
GAUDRON J: If it is a nullity.
GUMMOW J: It just seems this cult of nullity, to use I think Sir William Wade's expression - - -
McHUGH J: .....nullification.
GUMMOW J: It has strange niches and crannies to it really.
MR GRAHAM: Your Honour, that is so. Indeed, some of these nooks and crannies may never be explored because there are a number of cases where they - - -
GUMMOW J: One wonders if it is not a false religion.
MR GRAHAM: Your Honour, what would be transferred, using this shorthand, under section 11 would be the proceedings to date, the judgments at first instance and the pending appeal.
HAYNE J: But 6(a) would also bite, would it not, for the single judge's decision and the rights and liabilities which would fall for adjudication in the appeal pending in the Federal Court, which again, continuing the shorthand, is transferred, is an appeal in respect of the rights and liabilities as fixed by the ineffective judgment of the single judge, is it not?
MR GRAHAM: That is so, your Honour, and perhaps that is the reason why section 7 is to be found in the Act to deal in a different way with this sort of problem.
KIRBY J: What happens if, for example, the Evidence Act 1971 of Victoria requires a different outcome from the federal Evidence Act, which has been the subject of the proceeding in the Federal Court?
MR GRAHAM: It depends, your Honour, at what point of the proceedings - - -
KIRBY J: And some body of law will be different at the point of appeal.
MR GRAHAM: The question then would be whether the judge who heard that case at first instance was wrong in dealing with the matter in the way in which he or she did in the light of the evidentiary regime that prevailed in that jurisdiction.
KIRBY J: That is then accepting it as a valid proceeding.
MR GRAHAM: It is accepting it, with respect your Honour, as the proceedings as it happened, not that it is valid.
McHUGH J: But, Mr Solicitor, does any question of the operation of, say, the Victorian or South Australian Evidence Act apply? Is not the scheme of this Act to fasten onto whatever rights and liabilities were ineffectively formulated or declared in the Federal Court and then just say, "Well, they have force and effect as if they were a judgment of the court"?
MR GRAHAM: That is so, and you take the rights, as found, as it happens without jurisdiction, but, in accordance with the law that was applicable and applied by the judge of the Federal Court. That would resolve or perhaps in - - -
KIRBY J: So, in effect, the State Supreme Court becomes an appellate court from the Federal Court.
MR GRAHAM: In practice, your Honour, yes.
HAYNE J: Is that right?
McHUGH J: I am not even sure that is right, is it? Apart from its jurisdiction to allow proceedings to, in effect, be transferred, to continue the shorthand, it does nothing else, does it, although it has that power of variation?
MR GRAHAM: Yes. Section 10 might have something to say in certain cases.
HAYNE J: And it may be inapposite to speak of the process that is occurring in the Court of Appeal as something that would ordinarily be recognised as an exercise of appellate jurisdiction. It may have more in the nature of original jurisdiction, if those concepts were concepts that had application and relevance in discussing what happens in the State judicature.
MR GRAHAM: I would respectfully agree with that and if I may also respectfully point out that it is precisely in accordance with something that your Honour said this morning, that one should be looking - - -
HAYNE J: That probably proves it is wrong, Mr Solicitor.
GAUDRON J: But my problem is at one level pedantic, and it is this: if you say it is a nullity for constitutional purposes, then it is a nullity for constitutional purposes, covering clauses of the Constitution by the State Supreme Courts, but it would seem to me, then it must follow that they should declare it a nullity and you go back to square one. It seems to me, once you bring the notion of nullity in, there is the potential at least to undermine the entire structure of everything except section 6.
MR KEANE: Your Honour, section 6 certainly can stand alone whether the decision is that the original judgment be void or voidable.
HAYNE J: And it invites attention to what is the focus. Is the focus upon rights and liabilities, if you like, declared by the Act, or is the focus upon what the Federal Court did? If it is the latter, on your theory of the matter as I understand it at the moment, what the Federal Court did was a nullity and a court, all courts in the country must give effect to that, but if the relevant focus is not on what did the Federal Court do, but what are the rights and liabilities of the parties as declared by this Act, and should they be adjusted by a process called an appeal, then other considerations may - I do not know - they may perhaps intrude.
MR GRAHAM: I do not quite know how to answer your Honour's proposition but as the Act stands, we would say that the starting point is a purported exercise of jurisdiction which the Federal Court did not have resulting in pronouncement of an order beyond jurisdiction, something which Justice Stephen in Humby described as an act of law upon which the statute fastened in order to declare the rights of the parties. With great respect to his Honour, we find that phrase in his Honour's judgment difficult but it is at least a convenient label, and I choose that word advisedly, to describe what it is that is the focus of the legislation, at least in so far as section 6 is concerned.
HAYNE J: Is there anything in the State Jurisdiction Acts to which our attention has not so far been drawn which tells a State appellate court how it should go about regulating rights and liabilities of the parties following an ineffective judgment at first instance in a Federal Court?
MR GRAHAM: I think the answer is no, your Honour, but if I could just quickly check. Perhaps no particular attention has been given to section 7(3) which is exigetical of subsection (2) but perhaps does not add very much. It is important, of course, that subsection (3) be there as it precludes any suggestion that what the State legislatures were trying to do was to go beyond an appeal within the State hierarchy and give a right of appeal to this Court but, aside from saying that, I think the answer to your Honour's question is no.
Could I then say to the Court that we rely, in relation to most of the matters that are in issue in these proceedings, upon our written submissions and subject to the question of what we want to say about whether orders of the Federal Court made beyond jurisdiction are void or voidable, we do not wish to elaborate upon what we have given to the Court in writing. If I could then take the Court, however, to one or two observations about Humby and could I direct the Court's attention, in particular, to paragraphs 29 and 30.
Our learned friend for the defendants, in paragraph 41.1, suggest that a significant point of difference lay in the fact that the Matrimonial Causes Act was enacted by the Commonwealth Parliament, whereas the State jurisdiction legislation was enacted by the State Parliament. The point to be made here is that the Commonwealth was dealing with a Commonwealth problem arising under Commonwealth legislation, the 1959 Act, and passed the Act of 1971 to remedy the Commonwealth problem.
What is happening here is that the States are endeavouring to remedy, by means of the State Jurisdiction legislation, a problem which the States may be said to have created, albeit with the concurrence of the Commonwealth, in saying that the Federal Court may exercise the jurisdiction purportedly conferred. But both the attempt to confer and the attempt to consent have been held to be ineffective, so I would respectfully say that we are right in saying that this is a matter for the States, and the States alone, to deal with and nothing that we are attempting to do can possibly be said to constitute an intrusion into a Commonwealth domain.
The point is that the Commonwealth has no domain in relation to State matters. State matters are matters, as we now know, wholly for the adjudication by the States judicatures. And if the States - - -
McHUGH J: Unless they are part of the accrued jurisdiction.
MR GRAHAM: Of course, your Honour. I think anything I say in that regard may be subject to that implicit proviso. It is perhaps worth remembering also, although it may not be a matter of great moment, but as we point out in paragraph 30, the Commonwealth confronted the problem when Knight v Knight and Kotsis v Kotsis were decided arising from the separation of powers at the Commonwealth level which meant that the Commonwealth could not, as it were, deem orders of non-judges to be orders of judges. To do so would have involved an attempt by the Commonwealth, at least arguably, to exercise the judicial power of the Commonwealth towards Parliament.
McHUGH J: That was not really the question, was it? The question was whether it could invest State Supreme or it could declare that orders of State Supreme Courts had particular power. That was the real problem for them, was it not?
MR GRAHAM: In this case?
McHUGH J: No, in Humby. The orders had been made by Masters who were not part of the Supreme Court.
MR GRAHAM: But they were purporting to exercise federal jurisdiction conferred on the State Supreme Courts by the Commonwealth Parliament.
McHUGH J: That is so, but the only way the Commonwealth could confer jurisdiction on those courts was through section 77(iii), so they had to take the Supreme Court as they found it.
MR GRAHAM: As they found it, yes. And the Masters or Registrars not being members of it, so it was decided, wrongly as it turns out in Kotsis v Kotsis and Knight v Knight, because their orders were invalid. It is perhaps interesting, your Honours, although perhaps not of great moment, that following the Boilermakers Case, the Commonwealth Parliament enacted the Conciliation and Arbitration Act 1956 in order to prop up orders of the old Court of Conciliation and Arbitration. In section 49 of that Act the Commonwealth Parliament adopted an entirely different approach and said in substance - and I will put this in summary form - that the invalid orders of the old court should be deemed to be orders of the Commonwealth Industrial Court. One might say from this distance in time that there might have been some question about the validity of that technique. One may think also that - - -
GAUDRON J: How was "orders" defined? When you check that out, there may have been an interesting definition of "orders".
MR GRAHAM: I could not find one, your Honour - - -
GAUDRON J: No.
MR GRAHAM: - - - and I was struck by the difference between the two legislative regimes. Perhaps the drafting of the 1971 Commonwealth Act was alive to the problems which might arise and adopted this technique of focussing upon the rights of parties, rather than giving life to the orders of courts.
Could I then take the Court over to the remaining topic that we wish to discuss with the Court at any length. It commences in our written submissions at paragraph 43. Perhaps I could say at the beginning something which seems to adopt a view that your Honour Justice Kirby may have suggested this morning that an attempt to define or describe a court as being a superior court of record or an inferior court, we would submit, is not a useful inquiry in the present context.
It is certainly a useful line of inquiry in other contexts and has been for centuries. In our submission, here we are concerned, not with an attempt to put the Federal Court into a particular category or to give it a name, but to determine what are the effects of orders made beyond jurisdiction.
GAUDRON J: Is the same true of a State court exercising federal jurisdiction, in your submission, because it would seem odd that if the position is X for courts created by the Parliament to exercise jurisdiction, it should be different in the case of State courts invested with federal jurisdiction?
MR GRAHAM: Your Honour, I think the answer to your Honour's question must be, yes, logically, and one can think of no reason why not because the Supreme Court - - -
GAUDRON J: So that it would then follow, on that analysis, that in matters of federal jurisdiction, in all matters of federal jurisdiction, an order is necessarily different from matters involving the exercise of non-federal jurisdiction?
MR GRAHAM: The answer may depend upon the circumstances.
GAUDRON J: Leaving aside inferior courts, yes.
MR GRAHAM: We would say the answer is not to be found by simply saying, "Oh, the Supreme Court is a superior court of record and that is that". It may be that - - -
GAUDRON J: No.
GUMMOW J: Well, Humby was the State courts.
MR GRAHAM: I beg your Honour's pardon?
GUMMOW J: Humby was a 77(iii) case.
MR GRAHAM: Yes.
GUMMOW J: I think it was the 1959 Matrimonial Causes Act.
MR GRAHAM: That is, with respect, so, your Honour. So, what we say is that you do not find yourself even in the right area of discourse by pointing to the fact that the Federal Court is designated by the Parliament as a superior court or by reference to history which tells us that at least in many senses the State Supreme Courts are superior courts of record. The real question still depends upon the validity of the statute which purports to confer the jurisdiction which is under question.
McHUGH J: Well, maybe it is a question as to whether you mechanically apply the rule or whether you take notice of what Justice Holmes said, that people should not apply rules simply because the reasons for them were created in the times of Henry VIII.
MR GRAHAM: Yes.
McHUGH J: And if you look at the reason for this rule, then it would seem to have little application in the federal Constitution.
MR GRAHAM: Yes. I notice the time, your Honour. I wonder if it is - - -
GLEESON CJ: Is that a convenient time then, Mr Solicitor?
MR GRAHAM: I beg your Honour's pardon?
GLEESON CJ: Shall we adjourn until 10.15 tomorrow morning?
MR GRAHAM: I think that we will finish comfortably within the space of tomorrow, your Honour, but I think the estimate given that lunchtime would see an end to these proceedings may have been a little optimistic.
GLEESON CJ: Very well. We will take note of that and we will adjourn until 10.15 tomorrow morning.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 11 MAY 2000
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