Capital TV and Appliances Pty Ltd v Falconer

The Applications In AG 16 of 1998 Mrs Slater seeks an order of mandamus against Chief Justice Miles requiring, in substance, that he determine the matters referred to in the notice of motion she sought to file on 16 January 1997. In AG 24 of 1998 Mrs Slater seeks mandamus against the Registrar and Sheriff of the Supreme Court directing them to accept documents to be placed before a judge in chambers as required by Miles CJ's orders of 28 October 1994. Submitting appearances, appropriately, were made by the respondents in both of the above proceedings. There being no controverter of Mrs Slater's applications the Attorney-General for the ACT was invited to and did intervene in the two proceedings. Given the course he was to take, I ordered he be joined as a respondent in each application. The Attorney by amended notices of motions applied for orders (inter alia): "2. That the following questions be decided separately and before any trial in the proceedings: (1) Does the Court have jurisdiction to entertain the proceedings? (2) If "yes" to (1) does the Court have power to make the order sought?" My present concern is with the jurisdictional question so raised. In dealing with it in each application I have ordered that the two matters be heard together and that, insofar as relevant, the evidence in one will be taken as evidence in the other. I should preface what I have to say on the jurisdictional question with the following observation. Mr Gageler for the Attorney-General properly raised with me the question whether the Attorney's motions were strictly necessary given the order of the Full Court of 27 June 1997. In relation to AG 16 of 1998 it unquestionably is the case that Mrs Slater is inviting me to ignore a Full Court decision that is binding both on her and on me. That would be sufficient to dispose of that matter and, consequently, of the other proceeding as well. However, given the background to both applications it seemed to me appropriate to deal with the notices of motion in any event.

The Jurisdictional Question Mrs Slater's applications are made under s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903. These provide: "39B (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament." It is clear that in the respective capacities in which the respondents were acting in these proceedings, they were not officers of the Commonwealth. Neither were the duties they were alleged not to have performed ones arising under laws made by the Commonwealth Parliament.

The ACT Statutory Setting The Supreme Court was established by the Australian Capital Territory Supreme Court Act 1933 (Cth) ("the Supreme Court Act"). After 1 July 1992 that Act is to be taken to be an enactment of the Legislative Assembly of the ACT by virtue of s 34(2) and (3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act"). The ACT Supreme Court (Transfer) Act 1992 (Cth) provided for the transfer of responsibility for the Supreme Court from the Commonwealth to the Territory. The Supreme Court Act establishes the Supreme Court as a superior court of record: s 3. It consists of the Chief Justice and other judges who are appointed by the Executive: ss 3, 4. The Self-Government Act likewise provides for the procedures to be followed in removing a judge from office: s 48D. The jurisdiction of the Court encompasses - "(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory; (b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.": Supreme Court Act, s 20(1). Prior to the Self-Government Act it had been held that the then Supreme Court was not a federal court or a court exercising federal jurisdiction: Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591. Despite the criticisms made of that view in Kruger v The Commonwealth (1997) 190 CLR 1 at 108-109 and 170ff, it represents both the law I am to apply and the foundation of the Self-Government Act as it applies to the Supreme Court. The Supreme Court Act, additionally, creates the offices of Registrar and Sheriff, appointments to which are by the Attorney-General: s 46. And it prescribes the functions of each office: ss 47, 50. Turning now to the Self-Government Act, it established the ACT as a body politic separate from the Commonwealth: s 7; and conferred law-making power for the Territory on the Legislative Assembly: s 22. As already noted, by virtue of s 34 of the Self-Government Act, the Supreme Court Act, though originally a Commonwealth statute, is now to be taken as an enactment of, and hence as a law of, the Legislative Assembly. I should emphasise that the Legislative Assembly in the exercise of its law-making power does not act in any sense as an agent or delegate of the Commonwealth Parliament: Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 281-282.

Section 39B In the scheme created by the self-government legislation it is not open to argument in this court that the Chief Justice and Justices of the Supreme Court are, as such, "officers of the Commonwealth". They hold only Territory appointments under what now must be regarded as Territory legislation and it is in virtue of those appointments that they constitute the Supreme Court. For present purposes it is coincidental that some, but not all, members of the Court hold Federal Court commissions as well. Insofar as the present matter is concerned, Chief Justice Miles was exercising an office now to be regarded as created by Territory law and he was exercising jurisdiction under a Territory statute, ie the Supreme Court Act, in making his order of 7 February 1997. It is likewise with the Registrar and the Sheriff. They are officers of the Territory exercising functions conferred by legislation of the Territory, ie the Supreme Court Act. Mrs Slater entertains the view, apparently in relation to all of the respondents, that, as her motions relate to the Matrimonial Causes Act 1959 (ie a Commonwealth statute), this has the effect both of making them officers of the Commonwealth and of transforming the duties she seeks to enforce in these applications into ones arising under (ie owing their existence to) a law of the Commonwealth: cf LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581. It is of course the provenance of the office held and not of particular powers the office holder may in fact be empowered to exercise that determines whether that officer is or is not an officer of the Commonwealth: R v Anderson; Ex parte Bateman (1978) 21 ALR 56; Trimbole v Dugan (1984) 3 FCR 324. Likewise, if the right or duty in question in a matter does not owe its existence to Federal law or depend upon Federal law for its enforcement, the matter itself does not arise under a Federal law: Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] (1997) 189 CLR 654 at 657; notwithstanding that if that right or duty is enforced it would allow consideration to be given in turn in another court to a right etc that does owe its existence to a Federal law. The present matter concerns the enforcement of the respective duties of a judge and of court officers arising in virtue of the Supreme Court Act. That "Territory matter" is not transformed into one arising under a law of the Federal Parliament merely because the subject of the motion Mrs Slater wishes to have determined in the Supreme Court relates to alleged rights etc under such a law. Accordingly I do not have jurisdiction in any event to entertain Mrs Slater's applications. I will, then, answer the preliminary question "No". In consequence I will dismiss both applications. It is necessary, but regrettable, to have to observe that both applications are oppressive and vexatious. Whatever may be Mrs Slater's sense of grievance in relation to her matrimonial cause, it provides no justification for the abuse of the processes of this court that these applications represent. Finally, I would wish to express my appreciation to the Attorney-General for the assistance provided the court in this proceeding.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Solicitor for the Respondent: Australian Capital Territory Government Solicitor