O'Neill v Mann [2000] FCA 1180 | Case summary

Federal Court of Australia|2000-06-06|Before: Legislation Amendment J, Finn J

REASONS FOR JUDGMENT 1 The present motion seeking permanently to stay a proceeding in this Court has its immediate provenance in the decision of the High Court in Re Wakim; Ex parte McNally (1999) 163 ALR 270. Its object is to expose yet another alleged limitation on the original jurisdiction of the Federal Court, this time as it relates to common law matters arising in the Australian Capital Territory ("the ACT"). The issue raised is itself by no means new: see Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585. It raises "difficult questions": cf Eastman v R (2000) 172 ALR 39 at 74 fn 141. And given the complex and changing course of judicial decision on the relationship of Ch III and s 122 of the Constitution, its resolution will necessarily inspire its own controversies. 2 The motion is as well another instalment in the protracted dispute between the applicant on the motion, Dr Arnold Mann, and the respondent, James Joseph O'Neill. In order to understand the real object of the motion it is necessary to refer in a little detail to the history of the defamation proceeding between Mr O'Neill and Dr Mann.

the defamation action 3 In November 1989 Mr O'Neill commenced a defamation action against Dr Mann in the Supreme Court of the ACT. The proceeding was cross-vested, by consent, to this Court on 18 February 1994 under the provisions of s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"). The apparent need for this was that, for reasons of disqualification, no Canberra-based judge of the Supreme Court was available to hear the matter. 4 Dr Mann raised a defence of absolute privilege to the defamation claim. Whether that defence would be good was tried by Heerey J as a separate question. It was decided favourably to Dr Mann: O'Neill v Mann (1994) 49 FCR 370. The Full Court by majority reversed that decision in O'Neill v Mann (1994) 54 FCR 212. It ordered that Dr Mann's defence be struck out and, significantly for what was to come, ordered Dr Mann to pay the costs of the appeal and Mr O'Neill's costs at first instance of the separate question. Dr Mann appealed unsuccessfully to the High Court against these orders: Mann v O'Neill (1997) 191 CLR 204. 5 On 5 February 1998 Mr O'Neill through his solicitors, Phillips Fox, purported to discontinue the proceeding by filing a notice to that effect in the ACT District Registry. The leave of the Court not having been obtained as required by O 22 r 2 of the Federal Court Rules ("the Rules"), the notice was ineffective. Nonetheless Mr O'Neill's solicitors proceeded on the assumption that it had achieved its object and on 15 December 1998 filed a bill of costs for taxation in respect of the costs order of the Full Court to which I earlier referred. 6 That action elicited a prompt and hostile response to the taxation, Dr Mann taking some number of objections both to the taxation process itself and to the costs allegedly incurred by Mr O'Neill. Dr Mann later sought to have the claim for costs struck out on the basis that the defamation proceeding was itself an abuse of process. With the decision of the High Court in Re Wakim being handed down in this hostile environment, Dr Mann then resorted to it to attack the very foundation of the proceeding in which the Full Court's cost order was made. 7 Initially the Full Court's order and the subsequent taxation of costs (which was never finalised) provided the focus of Dr Mann's constitutional attack. Once the ineffectiveness of the purported discontinuance - and hence of the proposed taxation: see O 62 r 3(3) of the Rules - came to light, the proceeding took on a new complexion. In this unanticipated state of affairs, and having no intention of persisting in the defamation action, Mr O'Neill through his solicitors applied orally for leave to discontinue the proceeding. That application would necessarily raise a question of costs if leave was granted. Not surprisingly Dr Mann countered this application in his own motion to have the defamation proceeding permanently stayed for want of jurisdiction. As Mr O'Neill's application presupposed that the Court had jurisdiction in the matter, I took the view - as I was obliged to: see Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415 - that the jurisdictional question raised by Dr Mann must first be answered. 8 The requisite s 78B notices under the Judiciary Act 1903 (Cth) having been served, the Attorney-General of the ACT intervened in the proceeding. I would wish to acknowledge the assistance I have received in submissions from counsel for the Attorney. I should add that Dr Mann, albeit for understandable reasons, was without legal representation at the hearing before me.

DR MANN'S MOTION 9 The motion seeks a permanent stay of the defamation proceeding for want of jurisdiction in this Court to entertain the claim. The claim itself having been cross-vested to this Court pursuant to the Cross-Vesting Act, the want of jurisdiction asserted is said to arise from the invalidity of the provisions of that Act to the extent that they purport to invest this Court with jurisdiction to entertain a defamation action that arose in the ACT. 10 The three provisions of the Constitution on which the invalidity argument turns are s 76(ii), s 77(i) and s 122. Put compendiously, s 77(i) and s 76(ii) enable the Parliament to make laws conferring jurisdiction on a federal court with respect to "any matter … arising under any laws made by the Parliament". For its part s 122 enables the Parliament to make laws for the government of any Territory. 11 In relation to these provisions I would at the outset note the following propositions that emerge primarily from recent High Court decision. 12 (i) Though the meaning of the word "matter" is elusive given the variety of settings in which it has significance: Hooper v Kirella (1999) 96 FCR 1 at 13-14; it is sufficient for present purposes to say that a "matter" is constituted by a "justiciable controversy" between parties that is identifiable independently of the proceedings which are brought for its determination: Fencott v Muller (1982) 152 CLR 570 at 603; Abebe v Commonwealth of Australia (1999) 197 CLR 510. 13 (ii) A matter "arises under" a law made by the Parliament if the right or duty in question in that matter owes its existence to a law of the Commonwealth or depends upon a law of the Commonwealth for its enforcement, or if the source of a defence which asserts the respondent is immune from the liability or obligation alleged is a law of the Commonwealth: Northern Territory of Australia v GPAO (1999) 161 ALR 318 at 340; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154. 14 (iii) The power given by s 122, unlike those conferred by s 51 of the Constitution, is not confined by reference to subject matter: see eg Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 53-54. To support an exercise of the power all that need be shown is that "there should be a sufficient nexus or connection between the law and the Territory": Berwick Ltd v Gray (1976) 133 CLR 603 at 607. 15 (iv) A law made under s 122 of the Constitution is itself a law "made by the Parliament" for the purposes of s 76(ii) of the Constitution so that Parliament can confer jurisdiction on a federal court under s 77(i) in relation to matters arising under a s 122 law. That jurisdiction will itself be federal jurisdiction: Northern Territory of Australia v GPAO, above; Spinks v Prentice (1999) 163 ALR 270. 16 (v) For the purposes of s 76(ii) a matter will arise under a law made in the exercise of s 122 if (a) it arises directly under a statute enacted by the Commonwealth Parliament: Northern Territory of Australia v GPAO, above; Spinks v Prentice, above; (b) it arises under a statute which though not a statute of the Commonwealth is nonetheless given direct force and effect in a Territory by a s 122 statute: Eastman v R, above, at 74 and 84-85; see also Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd (Full Court, Supreme Court of the Northern Territory, 6 June 2000); (c) though possibly contentiously, it arises under delegated legislation made pursuant to a s 122 statute: Federal Capital Commission v Laristan Building and Investment Co Pty Ltd, above, at 585-586; and see Northern Territory of Australia v GPAO at 339-340; and (d) quite contentiously, if it arises under an enactment of a Territory legislature which in turn depends for its existence and law-making power on a statute enacted by the Commonwealth Parliament under s 122: see Re Governor, Goulburn Correctional Centre, Goulburn; Ex parte Eastman (1999) 165 ALR 171 at 182. 17 Turning to Dr Mann's contentions, his principal written submission is that while s 4(2) and s 9(2) of the Cross-Vesting Act(set out below) might purport to confer jurisdiction on the Federal Court in matters in which the Supreme Court of the ACT has jurisdiction, that purported conferral was ineffectual in the present proceeding as the matter in question - ie a common law defamation - did not arise under a law made by the Parliament for the purposes of s 76(ii) of the Constitution and hence could not be the subject of a jurisdiction-conferring law under s 77(i). 18 In oral submission Dr Mann sought as well to contend that a law made under s 122 of the Constitution fell outside the scope of s 76(ii) with the consequence that the Federal Court could not have jurisdiction conferred on it with respect to matters arising under such a law in any event. As the propositions set out above indicate, this submission is contrary to decided authority and must be rejected. 19 Before turning to Dr Mann's principal submission it is appropriate, first, to refer both to the relevant provisions of the Cross-Vesting Actand, because of their significance, to s 6 of the Seat of Government Acceptance Act 1909 (Cth) and s 4 of the Seat of Government (Administration) Act 1910 (Cth) ("the Seat of Government Acts").

(a) The cross-vesting act 20 Section 4(2) and (3) provide respectively: "(2) Where: (a) the Supreme Court of a Territory has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and (b) the Federal Court, the Family Court or the Supreme Court of a State or of another Territory would not, apart from this section, have jurisdiction with respect to that matter; jurisdiction is conferred on the court referred to in paragraph (b) with respect to that matter. (3) Where a proceeding is transferred to the Federal Court, the Family Court or a State Family Court of a State, that court has, by virtue of this subsection, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this subsection." Section 5 of the Act insofar as presently relevant provides: "5(1) Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court of a State or Territory (in this subsection referred to as the "first court"); and (b) it appears to the first court that: … (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court; the first court shall transfer the relevant proceeding to the Federal Court or the Family Court as the case may be." Section 9(2) provides: "(2) The Federal Court, the Family Court or the Supreme Court of a Territory may: (a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and (b) hear and determine a proceeding transferred to that court under such a provision."

(b) the seat of government acts 21 Section 6(1) of the Seat of Government Acceptance Act 1909 provides: "6(1) Subject to this Act, all laws in force in the Territory immediately before the proclaimed day shall, as far as applicable, continue in force until other provision is made." Subject to a proviso to which it is unnecessary to refer, s 4 of the Seat of Government (Administration) Act 1910 provides: "4 Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor-General, have effect in the Territory as if it were a law of the Territory."

conclusions 22 There are, in my view, two reasons why the motion must be dismissed. The first is that the justiciable controversy (the alleged defamation) itself arises under laws of the Commonwealth - the Seat of Government Acceptance Act 1909 and the Seat of Government (Administration) Act 1910 - and is in consequence "a matter" with respect to which this Court can be given original jurisdiction under s 77(i) of the Constitution. The second is that the Cross-Vesting Actitself, in providing for the enforcement of the rights and obligations of the parties to an alleged defamation in the ACT in the circumstances envisaged in s 5(2) of that Act, is a law of the Parliament under which the "matter" arose (albeit a law enacted under s 122 of the Constitution) and hence original jurisdiction could be conferred on the Federal Court in the same Act by virtue of s 77(i) of the Constitution in respect of that matter. My reasons for each of these conclusions are as follows.

the seat of government acts 23 As Gummow J observed in Mann v O'Neill, above, at 240, of Mr O'Neill's defamation action: "The applicable defamation law was the common law, varied and supplemented by those laws of the State of New South Wales continued in the Territory, as modified in their application there by s 3 and Sch 2 of the New South Wales Acts Application Ordinance 1984 (ACT). The relevant New South Wales legislation applied in this way was the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW)." As his Honour indicated in a footnote to this observation, the common law and the laws of New South Wales were continued in the Territory pursuant to s 6 of the Seat of Government Acceptance Act 1909 and ss 3 and 4 of the Seat of Government (Administration) Act 1910. 24 Whatever may have been the case in relation to the law that would have been in force in the ACT on surrender and acceptance on 1 January 1911 had the relevant Seat of Government Actsprovisions not been enacted: see Buchanan v The Commonwealth (1913) 16 CLR 315; Kruger v Commonwealth of Australia, above,at 168-169; the result of their enactment was that the law that was then to be in force in the Territory derived its operation and effect directly from Commonwealth statutes. 25 While both the common law and the continued New South Wales statute law could have been altered, repealed, etc by an Act passed under s 122 of the Constitution, by an Ordinance made under the Seat of Government (Administration) Act 1910 (until 1989) or by an Act of the Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) (from 1989), such of that law as was and remained applicable in defamation proceedings retained, save in one respect, its original character as law having force and effect in the ACT by virtue of the Seat of Government Acts. The saving I foreshadowed is that by the Ordinance of 1984 to which Gummow J referred, the two New South Wales Defamation Acts that were continued in force in 1911 were given effect under that Ordinance as laws of the Territory. If they thus lost their original character of being made directly applicable in the ACT by virtue of the Seat of Government Acceptance Act 1909, the Ordinance that subsumed them in 1984 nonetheless gave them like character to the extent that they owed their force and effect to the Seat of Government (Administration) Act 1910 under which the 1984 Ordinance was made. As Dixon J observed in Laristan's case at 585-586, "it is … clear that a claim to a right conferred by or under ordinances made … under s 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament". 26 In light of the decision of Dixon J in Laristan's case, and of the view expressed by McHugh J (with whom Gummow J agreed at 84-85) in Eastman v R at 74, it is clear, in my view, that if the right asserted by Mr O'Neill had arisen either under the continued New South Wales Acts (cf Eastman v R) or under an Ordinance (cf Laristan's case at 585-586), his matter would have arisen under a law made by the Parliament for the purposes of s 76(ii) of the Constitution, that law being the Seat of Government Acts or, in the case of an Ordinance, the Seat of Government (Administration) Act 1910. In saying this I should indicate that I do not consider that it is properly open to me to entertain the distant doubt expressed by Taylor J in Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 37 as to whether an action to enforce a right given by an ACT Ordinance can be said to involve a matter "arising under any laws made by Parliament". 27 It is the case, though, as the parties accept that Mr O'Neill's claim was founded on the common law. Should this make any difference given that both the common law in the Territory and the continuing New South Wales Acts have a like provenance in the Seat of Government Acts? In my view it should not. 28 In Laristan's case at 585 Dixon J ventured the view that "it may well be that all claims of right arising under a law in force in the Territory" (emphasis added) come within the description of matters which arise as a result of enactments of the Parliament for the reason that they arise indirectly as a result of the Seat of Government Acts. The "force in [this] statement" was acknowledged by Gummow J in Kruger's case at 168-169 where it was also recognised that the reference in this setting to a "law in force in the Territory" included the common law. For their part Cowen and Zines, Federal Jurisdiction in Australia (2nd Ed) at 162 conclude that "[a]ll the common law (including private international law) operating in a Territory has a statutory basis". 29 While the question with which I am concerned is free of binding authority, the possible conclusion alluded to by Dixon J and Gummow J, and propounded by Cowen and Zines, is that which reflects the actual course taken in the erection of the legal system of the Territory. It was put on a statutory footing from the outset with no operative difference in this regard being ascribed to the common law continued in force on the one hand and continued New South Wales statutes on the other. Both became the law in force in the Territory by force of a Commonwealth Act. The rights and duties countenanced by each owed their existence in the Territory to a Commonwealth law. To the extent that one or other or a combination of both provided rights and duties in justiciable controversies (or "matters"), those matters arose under laws made by the Parliament. 30 Given the character of the law applicable in defamation proceedings to which I earlier referred, legislation conferring jurisdiction on this Court to entertain matters invoking that law is not open to the objection raised by Dr Mann in his motion. I would for this reason dismiss the motion. 31 Before turning to the second objection to the motion I should indicate that my conclusion has not required me to consider (a) whether s 122 supports the conferral on this Court of a jurisdiction which is not federal jurisdiction; (b) the constitutional justification for the appellate jurisdiction of this Court in common law matters: cf Eastman v R at 74 fn 141; or (c) whether matters arising under Territory enactments passed after self-government are ones that arise under a law made by the Parliament for the purposes of s 76(ii) of the Constitution. 32 I should also indicate that I have not overlooked one particular consequence of my conclusion. It is this. Because of the recent amendment to s 39B of the Judiciary Act 1903 (Cth) giving original jurisdiction to this Court in any matter arising under any laws made by the Parliament other than in any criminal matter (s 39B(1A)(c)), the Court may now enjoy a much enlarged jurisdiction in relation to civil claims arising under laws in force in the ACT. It should not be forgotten, though, that from 1911 until 1933 when the Supreme Court of the ACT was created, the High Court had full original jurisdiction in the Territory initially by virtue of the Seat of Government Acceptance Act 1909 and later under the Judiciary Act, s 30B: see Mossop, "The Judicial Power of the Australian Capital Territory", (1999) 27 Fed L Rev 19ff.

the cross-vesting act 33 In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett both Latham CJ (at 154-156) and Dixon J (at 166-168) rejected an interpretation of s 77(i) of the Constitution that would require a "matter" to exist independently of any legislation conferring jurisdiction in that matter on a federal court: see also In the Matter of an Application under the Aboriginal and Torres Strait Islander Commission Act 1989 [2000] FCA 975 at [25]. As Dixon J asked (at 168): "Why should not the legislation thus conferring power upon the court perform the two functions of giving rise to the "matter" and conferring jurisdiction over it?" 34 For the purposes of enforcing rights or duties created or imposed by laws in force in a Territory, the Cross-Vesting Act(i) provided for the enforcement of such rights or duties; and (ii) conferred jurisdiction on this Court to that end when, in accordance with s 5(1) of the Act, this Court was found to be the appropriate one in which to determine a proceeding pending in the Supreme Court of the ACT. In consequence the Act performed the dual functions envisaged by Dixon J. My reasons for this conclusion can be stated shortly. 35 Even if (contrary to my earlier conclusion) Mr O'Neill's rights in the defamation proceeding had no statutory foundation in a Commonwealth law, they nonetheless depended upon statute for their enforcement. In the usual case, that statute would have been the Supreme Court Act 1933 (ACT) - an Act which, though previously an Act of the Commonwealth Parliament, has been transformed into a Territory "enactment" by yet another Commonwealth Act: see Australian Capital Territory (Self Government) Act 1988 (Cth) s 34(2) and (3); see also the historical narrative in Ex parte Eastman,above, at 198ff. It is unnecessary for me to explore whether, notwithstanding that change and the subsequent changes to the court made in consequence of it, rights and duties in issue in matters before the Supreme Court must (for the purposes of s 76(ii) of the Constitution) still be said ultimately to depend on a s 122 Act by which that court is sustained: see Ex parte Eastman,at 182. 36 The Cross-Vesting Actrecognised that the appropriate forum for the enforcement of rights might be in a court other than that in which a proceeding had competently been instituted. Section 5(1) of the Cross-Vesting Act(insofar as presently relevant) indicated the circumstances in which the Supreme Court of a Territory "shall transfer" a pending proceeding before it to the Federal Court notwithstanding that the Supreme Court had jurisdiction in the matter. 37 To the extent that the Cross-Vesting Actthus ordained how rights in what for convenience I will call Territory matters were to be enforced, it properly can be described both as legislation under s 122 of the Constitution: Berwick Ltd v Gray, above, at 607; and as legislation under which those Territory matters arise for s 76(ii) purposes: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett, above, at 154. To the extent that the Act conferred jurisdiction on the Federal Court (s 4) and permitted its exercise (s 9), the Cross-Vesting Actperformed the function envisaged by s 77(i) of the Constitution in relation to matters arising under a law of the Parliament, albeit a law under s 122 of the Constitution: Northern Territory of Australia v GPAO. 38 Independently, then, of the reasons I earlier gave for dismissing the motion, I would dismiss it on this basis as well.

INCIDENTAL ISSUES 39 I need merely note that the Cross Vesting Act as it applies to what I have called Territory matters has been amended on a number of occasions subsequent to the transfer of the present matter to this Court in 1994: see Law and Justice Legislation Amendment Act 1997 (Cth), Sched 12; Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sched 1 cll 61-69. It is unnecessary to consider the effects of the amendments wrought by these Acts as they do not have bearing upon the jurisdiction this Court had and retains in the present matter in consequence of the 1994 transfer and the provisions of s 4(2) and (3) and s 9(2) of the Act: see in any event s 8 of the Acts Interpretation Act 1901 (Cth). 40 I would dismiss the motion of 26 November 1999. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Dr A Mann, the Applicant on the motion, appeared in person.

Solicitor for the Respondent on the motion. Mr C Davis, Phillips Fox

Counsel for the ACT Attorney-General, intervening: Mr D Mossop

Solicitor for the ACT Attorney-General, intervening: ACT Government Solicitor

Date of Hearing: 23 May 2000

Date of Judgment: 23 August 2000

Cross-Vesting (Jurisdiction of Courts) Act 1987(Cth)

Law and Justice Legislation Amendment Act 1997(Cth)

Jurisdiction of Courts Legislation Amendment Act 2000(Cth)

New South Wales Acts Application Ordinance 1984(ACT)

Defamation Act 1901(NSW)

Defamation (Amendment) Act 1909(NSW)

Australian Capital Territory (Self Government) Act 1988(Cth)s 34(2)

O'Neill v Mann

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