Commonwealth v District Court of Metropolitan District

Up till 13th February 1950, when the District Courts (Amendment) Act 1949 N.S.W. commenced, the jurisdiction of the District Court in personal actions was limited to claims not exceeding an amount of £400. The limitation resulted from s. 41 (1) (a) of the District Courts Act 1912-1947. But by s. 3 (a) of the District Courts (Amendment) Act 1949 the amount of £400 mentioned in s. 41 (1) (a) was increased to an amount of £1,000. The action to which this application relates was instituted in the District Court by the Commonwealth, no doubt in reliance upon the combined operation of s. 39 of the Judiciary Act 1903-1950 and s. 75 (iii.) of the Constitution. Section 75 (iii.) of the Constitution gives jurisdiction to this Court in all matters in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. Section 39 (2) of the Judiciary Act provides that the several courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to the locality, subject matter or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to certain exceptions and conditions and restrictions which are not presently material.

The defendant in the action objected to the jurisdiction of the District Court on the ground that s. 39 of the Judiciary Act came into force at a time when the jurisdiction of the District Court was limited to claims not exceeding £400 and that the section does not operate upon any State jurisdiction so far as it is conferred or increased after that date. For this reason, so it was objected, the District Court has no federal jurisdiction with respect to personal actions corresponding with the State jurisdiction given by the District Courts (Amendment) Act 1949 over claims for a larger amount than £400. Section 39 was included in the Judiciary Act as passed in 1903 and it would seem that if the defendants' contention were sustained the correct date as at which to apply it would be 1903. At that date the jurisdiction of the District Court over personal actions was limited to an amount of £200: see s. 34 (1) of the District Courts Act 1901.

The learned District Court Judge took the view that s. 39 of the Judiciary Act applied to give federal jurisdiction only to the State courts existing at the date when the section came into operation and to give them federal jurisdiction only within the limits then existing of the State jurisdiction of such courts; any variation of such limits made by any subsequent State law must be disregarded in ascertaining the extent of the federal jurisdiction invested by s. 39 (2). It will be seen that the question of interpretation really is whether s. 39 is ambulatory in its meaning and application. Although there is no actual decision so interpreting it, in this Court s. 39 has always been regarded as ambulatory and consequently as operating upon State courts whether constituted before or after the commencement of the Judiciary Act 1903 and upon State jurisdiction according to the definition thereof under State law in force from time to time. The view that has been tacitly accepted is that the expression "within the limits of their several jurisdictions" refers to the limits imposed by the relevant State law in operation from time to time whether enacted before or after the commencement of the Judiciary Act 1903. There is nothing in the language of s. 39 to prevent the provision receiving an ambulatory effect and the known purpose of the provision could hardly be achieved unless it received such an effect or was repeatedly re-enacted at frequent intervals. Although there is no direct decision of the Court giving s. 39 this operation, on two occasions it has been so interpreted by individual judges of the Court. In his dissenting judgment in Le Mesurier v. Connor [1] , Isaacs J. stated most emphatically that this was the received meaning of the provision. His Honour's observations occur in the course of a passage invoking s. 39 in order to illustrate the particular view he was advancing. The fact that the majority of the Court were not in accord with the conclusion his Honour reached does not detract from the weight to be given to his Honour's statement, made in giving the illustration, of the common understanding of s. 39. The material part of what Isaacs J. said is this: - "And as the provision in sec. 39 is a standing provision constantly speaking in the present (see Halsbury's Laws of England, vol. 27, p. 208, andCraies on Statute Law, 4th ed. (1936), at p. 29), the identification of a given State Court depends on the circumstances as they exist at the moment when jurisdiction is exercised. Prior to that event, and perhaps since the passing of the Act, new Courts may have come into existence, old Courts have been abolished or remodelled, jurisdiction extended or restricted, and it would be impossible to say that in 1903, when that Act was passed, the State Courts pointed to by sec. 39 were all in effect enumerated and inalterable. Never in the whole history of this Court has it even been suggested that a State Court exercising Federal jurisdiction under sec. 39 must be one of the Courts identifiable on 25th August 1903 or with its jurisdiction in all respects as then identifiable" [1] .

1. (1929) 42 C.L.R., at p. 503. 2. (1929) 42 C.L.R., at p. 503.

Many years later, in Minister for the Army v. Parbury Henty & Co. [2] , it was again referred to as one presumably accepted: - "The provision was meant to cover the whole field of Federal jurisdiction so that the conditions embodied in the four paragraphs of sub-s. 2 should govern its exercise whether the cause of action, the procedure and the liability to suit arose under existing or future legislation. To that end it invested State courts with the full content of the original jurisdiction falling within the judicial power of the Commonwealth and, as it has been held, some of the appellate jurisdiction. The limits of jurisdiction of any court so invested found their source in State law and, I presume, any change made by the State in those limits would, under the terms of s. 39 (2), ipso facto make an identical change in its Federal jurisdiction. An acknowledged purpose was to exclude appeals as of right to the Privy Council, and it was intended to exclude them over the whole field of Federal jurisdiction. That jurisdiction was, therefore, conferred in its entirety, leaving it to future legislation to bring into being new subject matters and deal with procedure and liability to suit" - per Dixon J. [3] . This understanding represents the interpretation which we think the section should receive. It is the traditional view of the section and it is not a view which seems ever before to have been contested.

1. (1945) 70 C.L.R. 459. 2. (1945) 70 C.L.R., at p. 505.

There is no constitutional reason why s. 39 should not be so construed. Section 39 (2) has been upheld as a law made in the exercise of the power conferred by s. 77 (iii.) of the Constitution, aided perhaps by s. 51 (xxxix.), and it is of course true that to fall under s. 77 (iii.) s. 39 (2) must be a law investing courts of a State with federal jurisdiction. But s. 39 (2) of the Judiciary Act construed as an ambulatory provision answers that description. It is a law operating upon the courts of the States as those courts exist from time to time and its operation is to invest them with federal jurisdiction. In restricting the grant of federal jurisdiction within the limits of the jurisdiction under State law of the several courts, s. 39 (2) is again taking up the limits of the jurisdiction which State law may prescribe from time to time for the State jurisdiction of those courts. The jurisdiction invested is none the less defined by the investing provision because the definition operates with reference to the law of the State as it exists from time to time. Section 39 (2) does not delegate any power to the States to invest a court with federal jurisdiction. It deals with the courts of the States by description and it describes them according to the very character in virtue of which they fall under the constitutional power conferred by s. 77 (iii.). The transformation of the jurisdiction on federal matters into federal jurisdiction is not done by the State but is effected by s. 39 notwithstanding the State's enactment that the Court shall have State jurisdiction. It is not made any the less an enactment investing the courts of the States with federal jurisdiction because it continues in force from day to day as a law presently speaking, and operates upon the courts of a State as they are brought into existence and upon the limits of their respective jurisdictions as they are defined or redefined. This is an entirely different thing from the legislative provision discussed in Le Mesurier v. Connor [1] . The law there in question purported to empower the Governor-General to select any court of a State and by naming it to effect an investing of federal jurisdiction. That was not a law operating according to its terms to invest State courts of a given description with federal jurisdiction but a law purporting to empower the Executive to invest jurisdiction when and if it chose.

The whole question depends upon the construction of s. 39. It is sufficient to say that the section should be construed as an ambulatory provision operating in relation to State jurisdiction as it exists from time to time and within the limits imposed from time to time by State law upon such jurisdiction. It follows that the objection ought to have been overruled and the action should have been entertained by the District Court. The order nisi will therefore be made absolute.