Commonwealth v Hospital Contribution Fund of Australia - [1982] HCA 13 - HCA 1982 case summary — Zoe

CTHHCA

Commonwealth v Hospital Contribution Fund of Australia

[1982] HCA 13

High Court of Australia|1982-05-11|Before: Brennan JJ

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Source facts

Court

High Court of Australia

Decision date

1982-05-11

Before

Brennan JJ

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13

[2]

ORDER Demurrer allowed with costs. Judgment for the defendants in action No. 48 of 1981 with costs.

[3]

This is a demurrer, by the State of New South Wales, to the statement of claim delivered by the plaintiffs in this action. The facts which may be taken to be established for the purposes of the demurrer are the following. In 1977 the Hospital Contribution Fund of Australia ("H.C.F."), a company incorporated in New South Wales, commenced proceedings for damages in the Supreme Court of New South Wales against Mr. Hunt, who was then Minister of State for Health of the Commonwealth, and who was sued on behalf of the Commonwealth. In February 1981 H.C.F. caused to be issued out of the Supreme Court a subpoena for the production of documents, directed to Mr. MacKellar, who by that time had become the Minister of State for Health. The documents which the subpoena required to be produced were in the possession of Mr. MacKellar by reason only of his being the Minister of State for Health. Upon the return of the subpoena before Master Allen, a master of the Supreme Court, Mr. MacKellar claimed that the Commonwealth was entitled not to produce certain of the documents on the ground that their production would be injurious to the public interest. The master adjourned the proceedings to enable this Court to decide whether he had jurisdiction to hear and determine the claim to privilege. The present action was commenced in this Court by the Commonwealth, Mr. Hunt and Mr. MacKellar, as plaintiffs, who claim against the defendants, H.C.F., Master Allen and the State of New South Wales, a declaration that the master has no jurisdiction to hear and determine the claim to privilege or to order Mr. MacKellar to produce any of the documents.

[23]

In the present case there are a number of circumstances that have led me to the conclusion that we should reconsider the correctness of Kotsis v. Kotsis and Knight v. Knight. It should be unnecessary to say that I am not about to recite a list of grounds any one of which, standing alone, would provide a justification for overruling an earlier decision. All the circumstances have to be considered, but for obvious reasons it is convenient to refer to some of them separately. In the first place, the decisions do not rest upon a principle that has been carefully worked out in a succession of cases. Although their correctness was perhaps assumed in Reg. v. Humby; Ex parte Rooney [8] , that assumption had nothing to do with the result in that case. They stand alone and to overrule them will not unsettle the law in other respects. Indeed, the decisions are in my respectful opinion opposed to the principle, established in Le Mesurier v. Connor [9] , that when the Parliament invests a State court with federal jurisdiction it has no power to alter or affect the constitution of the court or the organization through which its jurisdiction and powers are exercised; see also Adams v. Chas. S. Watson Pty. Ltd. [10] ; Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [11] ; and Russell v. Russell [12] . Secondly, there is an important difference between the reasoning of Barwick C.J. and that of the other justices who constituted the majority in Kotsis v. Kotsis. Barwick C.J., who spoke of s. 77(iii) as though it referred to "Supreme Courts" rather than simply to "courts", expressed the opinion [13] , that it is not entirely for a State to determine of whom the Supreme Court may consist for the exercise of federal jurisdiction. He said [14] : "If State law were to change this composition" [i.e., the composition of the Supreme Court] "in a radical way what the State continued to call the Supreme Court would not satisfy, in my opinion, the references in the Constitution to the Supreme Courts of the States." If Barwick C.J. intended to suggest that the reference to court in s. 77(iii) of the Constitution is only to a court as it was constituted before the commencement of the Constitution I am unable, with all respect, to accept the correctness of his suggestion. It is well established that the provisions of s. 39(2) of the Judiciary Act are ambulatory and operate upon State courts whether constituted before or after the commencement of the Judiciary Act: see The Commonwealth v. District Court of the Metropolitan District [15] , and Collins v. Charles Marshall Pty. Ltd. [16] . In the latter of those cases the court in question was established in 1937 - long after the commencement of the Constitution - but it was nevertheless held to be invested with federal jurisdiction. In Kotsis v. Kotsis, Menzies J. [17] stated the position in a way with which I would respectfully agree when he said that the Parliament "can do no more than invest a State Court, as it is or as it may become, with federal jurisdiction." Thirdly, the decisions in Kotsis v. Kotsis and Knight v. Knight achieve no useful result, but on the contrary lead to considerable inconvenience. On the one hand, to exclude the officers of a State court, who regularly exercise its powers, from the investiture of federal jurisdiction does nothing to protect the freedom of the individual or the independence of the judiciary, since a court composed of laymen, with no security of tenure, might effectively be invested with jurisdiction under s. 77(iii). On the other hand, to require the State courts to depart from their established organization in dealing with matters of federal jurisdiction has many disadvantages. I have expanded upon this aspect of the matter in Kotsis v. Kotsis [18] . Finally, a very important circumstance that led Stephen J. and myself in Queensland v. The Commonwealth [19] to refuse to overrule an earlier decision with which we disagreed was that the decision had been acted upon, and that a consequence of overruling it would be to deny representation in the Senate to inhabitants of the Territories to whom it had been conceded by the earlier decision. In the present case, the decisions in Kotsis v. Kotsis and Knight v. Knight have, it is true, in one sense, been acted upon, in that some States have enacted legislation for the obvious purpose of enabling masters to be invested with federal jurisdiction. However, the States have acted upon the decisions only for the purpose of endeavouring to circumvent them. No one will be adversely affected if the decisions are overruled.

[49]

In Reg. v. Hegarty; Ex parte City of Salisbury [37] I was of opinion that Kotsis v. Kotsis [38] was wrongly decided. Kotsis v. Kotsis (and Knight v. Knight [39] which followed it) should be overruled. They were an indirect result or extension of the doctrine of separation of powers stated in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [40] (the Boilermakers' Case) which, although deeply rooted in our constitutional law, can easily lead to great inconvenience and absurdity if pushed to extremes. The Constitution is to be read as the general framework of government and not narrowly and pedantically, as it so often is. The Constitution, in vesting, or providing for the investing of, jurisdiction in courts, should not be taken as allowing the exercise of the jurisdiction only by those who, in the strictest sense, constitute the court, such as justices of the High Court and other federal courts; it should be taken as permitting the exercise by officers who are under the supervision of those who constitute the court. The necessity for avoiding any narrow approach to these provisions is evident from the fact that the courts of the State which may be vested with federal jurisdiction under s. 77(iii) include not only the Supreme Courts (as Barwick C.J. seemed to think in Kotsis v. Kotsis) but also numerous courts having a variety of limited jurisdictions constituted with a variety of memberships. Some have members who are not lawyers, some have persons exercising jurisdiction who are not strictly members of the court. In investing any court of a State with federal jurisdiction (under the Constitution, s. 77(iii)) Parliament can authorize the exercise of that jurisdiction by a person who is not strictly a member of the court, provided that the person is under the real supervision and control of the court (as by review or appeals to a judge). Traditionally, officers such as prothonotaries and registrars have exercised judicial power in taking of accounts, inquiries into or assessments of damages, and other interlocutory or preliminary matters. If Parliament has not stated otherwise, investment of any State court with federal jurisdiction should be taken as investment of the court as it is organized from time to time under State law, so that not only its members, but its officers and other persons under its supervision and control may exercise federal jurisdiction in the same way as they would State jurisdiction.

[68]

In Kotsis, the Court was concerned with the effect of s. 23(2) of the Matrimonial Causes Act 1959-1966 Cth. That provision invested without limitation the Supreme Court of each State with federal jurisdiction to hear and determine matrimonial causes instituted under that Act. A majority of the Court (Barwick C.J., McTiernan, Menzies, Windeyer, Owen and Walsh JJ.) were of the opinion that the federal jurisdiction invested in the Supreme Court could be exercised only by persons who are members of that Court, and "not by persons who, although they may have had authority under State laws to perform certain judicial functions, are not part of that Court" [49] : per Walsh J. Gibbs J. dissented, being of the view that any court of a State in s. 77(iii) of the Constitution includes its organization as provided by the State law. He said [50] : "The federal jurisdiction may therefore be exercised not only by the judges of the court but also by those officers of the court who form part of the organization through which it exercises jurisdiction in analogous cases under State law". The opposing contentions are fully discussed in the reasons for judgment of the members of the Court, and no useful purpose is to be served by my going over the ground again in any detail. In the circumstances, I find that I can express my conclusion as to the correctness of the decision quite shortly. In my opinion, with all respect to the views of the majority in that case, the decision presents too limited a concept of "any court" as those words are used in s. 77(iii). There is much to be said for the distinction which Miss Gaudron drew between the fact of conferring jurisdiction on a court and the manner of its exercise. Jurisdiction is vested in a court, and in that sense the word "court" identifies an institution consisting both of the persons who compose the court, and the officers and procedures through which its judicial function is performed. On this view, there is no problem in giving effect to an exercise by the Parliament of the power to invest federal jurisdiction in a Supreme Court. That invested jurisdiction in the absence of any qualification attached to the investiture is intended by the Parliament to be exercised in the same manner as the state jurisdiction of the court. In my view, these principles find support in the majority decision of the Court in Le Mesurier v. Connor [51] ; on the other hand, the emphasis in Kotsis on the membership of the court to the exclusion of its organization bears resemblance more to the dissenting judgment of Isaacs J. in that case [52] . I do not think that any decision of this Court prior to Kotsis supplies any authority to the contrary. I agree so fully with the dissenting judgment of Gibbs J. in Kotsis that I would gratefully adopt the opinions expressed therein as my own. It follows that I am satisfied that the decision of the Court in Kotsis and the consequent decision in Knight, were erroneous.