Friis v Friis & Ors [2000] QCA 62

The application, if a little inelegant, identifies clearly enough the jurisdiction sought to be exercised, and no submissions were ever made to the contrary. The application of the applicant filed 11 May 1998 did not conform with O 31 r 4(1)(a) in that it did not particularise the State or Territory law upon which the party intended to rely, but the declaration and orders for sale sought by the applicant and described herein rely on the exercise of a like jurisdiction to that invoked by the wife.

There are, accordingly, a variety and number of proceedings in the various applications being heard in this matter in this Court. The matter of jurisdiction was raised by myself shortly after the proceedings before me commenced, and all parties wish to avoid the extra and unnecessary expense involved in conducting proceedings in two different Courts. I understood it was agreed that a substantial part of the factual matrix, if not the whole, was common to all applications, and common legal issues arose. ...

I have mentioned this at some length because one of the applications before me is the wife's cross-vested statement of claim against the second and third respondents. That action is one which she is entitled to bring quite independently of the proceedings by the applicant against herself or those other respondents. ... As the statement of claim reveals, it is entirely an action between the wife as plaintiff and the second and third respondents in these proceedings as defendants in that cross-vested action. I think it follows that in that latter action the jurisdiction of this court to make orders as between the wife and the second and third respondents with respect to the farm is in no way subject to the constraints imposed by s 9(8)(b)(i) and (ii) in the various applications in which the applicant as executrix of the deceased is a party."

[22] The learned trial judge was satisfied that the wife had not established the undue influence pleaded by her. However, he found in favour of the wife on the ground that it would be unconscionable for the disponees to retain the gift made to them. In consequence the learned trial judge said: "I consider I should find for the wife in her cross-vested action, and order that these transfers be set aside." It is not necessary to set out for present purposes details of the other orders ultimately made.

[23] By Notice of Appeal filed in the Family Court on 27 May 1999 J J and L C Friis appealed to the Full Court of the Family Court against two of the orders of Justice Jerrard; in particular that appeal challenged the findings on which the order setting aside the disposition was based.

[24] On 31 May 1999 G C Friis filed a Notice of Appeal in the Family Court appealing against a number of the orders made by Justice Jerrard. An Amended Note was then filed on 16 June. Again that appeal challenged orders and findings made in the purported exercise of cross-vested jurisdiction.

[25] Insofar as the Family Court relied on the cross-vesting legislation that involved vesting a federal court with State jurisdiction. Before the appeals were heard the High Court on 17 June 1999 handed down its decision in Re Wakim; ex parte McNally [1999] VSC 227; (1999) 73 ALJR 839. Therein it was held that legislation purporting to confer State jurisdiction on federal courts was invalid. To the extent that it purported to provide for the conferring of such jurisdiction the cross-vesting legislation was invalid. It followed that the decision of Justice Jerrard was made without jurisdiction if the relevant source of the jurisdiction he exercised was the cross-vesting legislation.

[26] The problems thereby created were addressed by the Act. In broad practical terms the solution therein provided that:

(i) where there is a judgment of a Federal court involving a State matter that judgment is declared to be a judgment of the State court;

(ii) where a matter is pending in a Federal court and it involves a State matter the State court may order that the proceeding be treated as a proceeding in that State court.

[27] Where there has been an actual judgment by a federal court which involves a State matter, s 4 of the Act is pivotal; relevantly it provides:

"(1) A reference in this Act to an "ineffective judgment" is a reference to a judgment of a federal court in a State matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act.

(b) A Full Court of the Family Court of Australia has purported to affirm, reverse or vary an ineffective judgment,

a reference in this Act to the ineffective judgment is a reference to the ineffective judgment in the form in which, and to the extent to which, it purports or purported to have effect from time to time."

[28] It will be necessary for present purposes to analyse that section in greater detail, but that task can best be left until after the significance of other sections of the Act are noted. For ease of discussion I will assume that the decision of Justice Jerrard was an ineffective judgment.

[29] Section 6 of the Act provides that the rights and liabilities of all parties are declared to have been the same as if the ineffective judgment "had been a valid judgment of the Supreme Court" of Queensland. No order of this Court appears to be necessary in order to achieve that result. By operation of the section of the statute (in the assumed circumstances) the judgment of Justice Jerrard would be deemed to be a valid judgment of this court.

[30] The parties to the proceeding in the Family Court giving rise to the ineffective judgment are then given the right by s 7(2) of the Act "to appeal against that judgment". That would of necessity be an appeal to the Court of Appeal of the Supreme Court of Queensland.

[31] Further, s 8 would appear to have the consequence that the Notices of Appeal filed in the Family Court were deemed to be Notices of Appeal to the Court of Appeal of the Supreme Court of Queensland. On that analysis of the Act, where there was no doubt that the judgment in question was an "ineffective judgment", and a Notice of Appeal had been filed in the appropriate federal court, the appeal would proceed in the Court of Appeal of this Court without the necessity of any formal order to that effect.

[32] If the Act is construed and applied in that way then s 11 would primarily apply to the situation where there was a proceeding pending in a federal court involving a State matter and the Act was called into play before a judgment was delivered. In those circumstances the federal court could make a "relevant order" within s 11(1) of the Act. For present purposes it is sufficient to note that a "relevant order" includes a "declaration by a federal court ... that it has no jurisdiction to hear and determine a proceeding relating to a State matter".

[33] It may well be that s 11 also covers the situation where, as here, at the material time the proceeding in the federal court is an appeal from an "ineffective judgment". It is not necessary to finally determine that question for present purposes.

[34] However, the Full Court of the Family Court made a declaration in those terms in the present case and that has given rise to the applications in this court by G C Friis and by J J and L C Friis pursuant to s 11(2) of the Act, which provides:

"A person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order."

[35] Where there was no doubt but that the judgment at first instance was an "ineffective judgment" within s 4 of the Act it probably does not matter whether the appeal gets to the Court of Appeal of the Supreme Court of Queensland through the combination of sections 6, 7 and 8 of the Act outlined above, or by way of declaration and order made pursuant to s 11. If there was no doubt but that the judgment of Justice Jerrard was an "ineffective judgment" for purposes of the Act there would be no good reason for this court refusing to make such orders as may be necessary under s 11 to allow it to proceed with the hearing of the appeal.

[36] However, there is a major problem which arises in a matter such as this which appears not to have been addressed by the Act. The point was alluded to in argument but the critical issues were not fully addressed in submissions to this court. Nor was it raised with the Full Court of the Family Court. The problem arises because, as recognised by the decision in Fencott v Muller (1983) 152 CLR 570, a federal court has "accrued jurisdiction". Such accrued jurisdiction was vital to the actual decision in the Wakim appeals.

[37] The position is well summarised by McHugh J in Wakim at 856 where he said:

"Whether an issue, whose resolution depends upon State law or the common law, is within the accrued jurisdiction of the Federal Court depends upon whether it is part of a "matter" arising under s 75 or s 76 of the Constitution. To be part of that "matter" it must be part of a single controversy. And as the Court said in Fencott v Muller (at 608) that "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships". As the Court went on to say (608) in that case, "in the end, it is a matter of impression and of practical judgment whether a non-federal claim and federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter"."

[38] To similar effect are the passages in the judgment of Gummow and Hayne JJ at 869-70.

[39] The material before this court indicates that when the Full Court of the Family Court made its declaration pursuant to s 11 of the Act it did so without hearing any argument; the matter was disposed of by consent. The declaration is in these terms: "That by consent pursuant to the provisions of s 11 of the Federal Courts (State Jurisdiction) Act 1999 (Qld), the Court has no jurisdiction to hear and determine so much of the appeal as relates to a State matter." Unfortunately that declaration is not really of much assistance. It does not define the extent to which the proceeding in the Family Court involved a State matter. That is not something which this court can determine because it involves in essence making a finding as to the limit of jurisdiction of the Family Court with respect to the proceeding. That, of necessity, must also involve a finding as to the limit of that court's "accrued jurisdiction" in the particular matter.

[40] The issue is more acute because of the definition of "ineffective judgment" in the Act. A State Act cannot arrogate to a State court federal jurisdiction without the support of federal legislation. If, for example, the proceeding in a federal court involved a "matter" which resulted in the federal court acquiring jurisdiction under State law or the common law as part of its accrued jurisdiction, the Act would not apply so as to render the judgment in question an "ineffective judgment" and in consequence a judgment of the State court.

[41] It is clear in the instant case that Justice Jerrard thought that he was exercising jurisdiction pursuant to the Queensland cross-vesting legislation; in consequence he purported to exercise State jurisdiction. But that does not dispose of the problem. If in law and in fact he had jurisdiction to deal with the whole matter because it came within the accrued jurisdiction of the court as defined in Fencott v Muller it is irrelevant that he did not expressly base his reasoning on that ground or even that he mistakenly believed that he did not have such jurisdiction. If a court has jurisdiction to deal with a matter and make the orders it did, then it does not matter that the judge made an error in stating the source of the power to so act.

[42] Given that the parties constructed the proceeding as they did in the Family Court it is for the Family Court in the first instance to determine the limits of the "accrued jurisdiction" if any. In the circumstances it is not appropriate for this court to embark upon a consideration of the jurisdictional limits on the Family Court at the time of the hearing before Justice Jerrard.

[43] For those reasons the Full Court of the Family Court should determine in the first instance the limit of the accrued jurisdiction, if any. If a party considered that the Full Court erred in making its decision in that regard then the only recourse would be to seek to appeal to the High Court. If the Full Court of the Family Court determined that, notwithstanding the language used in the extracts from the judgment quoted above, Justice Jerrard had jurisdiction pursuant to the accrued jurisdiction of the court to hear and determine all issues raised in the proceedings, then his judgment would not be "ineffective"; the Act would not apply and the appeals would proceed in the Full Court of the Family Court. If the Full Court of the Family Court determined that Justice Jerrard had no jurisdiction to deal with all the issues raised in the absence of the cross-vesting provisions then it would be necessary for that court to define the State matters which fell outside the jurisdiction of the Family Court. It is the orders with respect to those matters which would be caught by the Act.

[44] Some of the issues determined by Justice Jerrard were clearly within the jurisdiction of the Family Court pursuant to the Federal statute conferring jurisdiction on it. To the extent that such issues were involved the Act could not deem the judgment with respect thereto a judgment of this court. It would therefore seem that if part of the judgment was invalid because it was dependent upon cross-vested jurisdiction, the appeals, insofar as they involved family law matters, would prima facie be within the jurisdiction of the Full Court of the Family Court, and insofar as they involved State matters they would be within the jurisdiction of this court.

[45] To avoid the necessity of there being two separate appeal hearings it would be theoretically possible for the Family Court to cross-vest that part of the appeal involving family law matters to the Court of Appeal of the Supreme Court of Queensland pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Each of the applicants in this Court indicated an interest in seeking such an order if that was the situation.

[46] It follows that at this stage this court cannot make an order pursuant to s 11 of the Act. The Family Court should resolve the accrued jurisdiction issue and if there was a State matter which was not validly within the jurisdiction of that court at the material time then that should be expressly defined at the time of making the declaration pursuant to s 11.

[47] The best course would appear to be to adjourn each of the present applications to a date to be fixed. Costs should be reserved.

[48] WILSON J: I have had the advantage of reading the reasons for judgment of McPherson JA and Williams J, with which I am in substantial agreement. I agree with the orders proposed by Their Honours.

[49] In consequence of the decision in Re Wakim; ex parte McNally [1999] VSC 227; (1999) 73 ALJR 839 the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) could not give the Family Court jurisdiction it otherwise lacked to exercise State judicial power. A judgment of the Family Court on a "matter" invalidly cross-vested to it would be an "ineffective judgment" within s 4 of the Federal Courts (State Jurisdiction) Act 1999 (Qld). I shall refer to the latter as the "1999 State Act."

[50] Such a judgment would be deemed to be a judgment of the relevant State court (in this case, the Supreme Court of Queensland), and an appeal could be brought as of right to the Court of Appeal of the Supreme Court of Queensland: see sections 6 and 7 of the 1999 State Act.

[51] However, if the Family Court could have dealt with the "matter" in its accrued jurisdiction, it is not to the point that an order cross-vesting it to that court was invalidly made. It was always within the jurisdiction of the Family Court, and a judgment of that court in relation to it would not be an "ineffective judgment." Rights of appeal would be in accordance with the usual provisions governing appeals in the Family Court.

[52] Section 11 of the 1999 State Act is concerned with pending proceedings, including a pending appeal if it is "a proceeding in relation to a State matter," i.e. is one in which the Family Court does not have jurisdiction (whether express or accrued). It provides a mechanism for continuing such proceedings in the State court.

[53] The extent of the jurisdiction of the Family Court (in particular, whether a certain "matter" is within its accrued jurisdiction) should be determined in the first instance by that court.

[54] It is not possible to tell from the order of the Full Court of the Family Court of 8 November 1999 what were the "matters" in which it considered it lacked jurisdiction.

[55] I agree that the application to this Court should be adjourned so that the parties may approach the Full Court of the Family Court for clarification of its determination on the jurisdictional issue.