Constitutional Law - prohibition - whether prohibition issues as of right under s75(v) of Constitution if absence of jurisdiction appears on face of the proceeding - residual discretion to refuse prohibition - consideration of election, existence of other remedies and abuse of process as grounds for refusing prohibition - application for prohibition and certiorari refused on discretionary grounds.

Statute - consideration of principles of construction applicable to a legislative scheme - whether general provisions of Jurisdiction of Courts (Cross-Vesting) Act are to be construed as subject to specific provisions of Trade Practices Act - consideration of maxims of construction "generalia specialibus non derogant" and "expressum facit cessare tacitum" - construction of the statutory provisions to give effect to manifest object of the legislative scheme - Commonwealth cross-vesting legislation provides overlapping but additional source for investment and conferral, and transfer, of federal jurisdiction on State and Territory Supreme Courts.

Words and Phrases - "Matter" - "Generalia specialibus non derogant" - "Expressum facit cessare tacitum".

Jurisdiction of Courts (Miscellaneous Amendments) Act 1987

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss.3(1), 4, 5 (4), 6,

Trade Practices Act 1974 (Cth) ss.86, 86A

Constitution s.75(v)

Cases

Fencott v. Muller (1983) 152 CLR 570

Poignand v. NZI Securities Ltd. and Ors. [1992] FCA 369; (1992) 37 FCR 363

NEC Information Systems Pty. Ltd. v. Iveson (1992) 36 FCR 258

South Eastern Drainage Board (S.A.) v. Savings Bank of South Australia

[1939] HCA 40; (1939) 62 CLR 603

Commissioner of Stamps v. Telegraph Investments [1995] HCA 44; (1995) 70 ALJR 155

Maybury v. Plowman [1913] HCA 43; (1913) 16 CLR 468

Royal Automobile Club of Australia v. Sydney City Council (1992) 27 NSWLR

Re McJannet (1995) 132 ALR 189

R. v. Australian Stevedoring Industries Board Ex parte: Melbourne

Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100

R. v. Ross-Jones Ex parte Green [1984] HCA 82; (1984) 156 CLR 185

R. v. Gray; Ex parte Marsh [1985] HCA 67; (1981) 157 CLR 351

R. v. Hibble Ex parte The Broken Hill Proprietary Company Limited (1920-21)

[1920] HCA 83; 28 CLR 456

Haynes v. Hirst [1927] NSWStRp 66; (1927) 27 SR (NSW) 480

Re Comalco Aluminium (Bell Bay) Ltd. Ex parte AWU (1995) 70 ALJR 142

Mr. M. Jacobs Q.C. with Mr. Aitken instructed by Milios and Company appeared for the prosecutors.

Mr. D. Bennett Q.C. with Mr. Faulkner instructed by the Australian Government Solicitor appeared for the first and second respondents.

1. The Court orders that the application for the issue of writs of prohibition and certiorari be refused.

2. The Court directs that:-

(a) the Australian Competition and Consumer Commission file and

serve written submissions on the issue of costs within 7 days;

(b) if Collings Construction Company Pty. Limited, June Maude

Collings and Wayne Ronald Collings wish to make any submissions on

the issue of costs they do so in writing and file and serve the

written submissions within 7 days;

(c) the applicants file and serve any submissions in reply within

14 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ, COOPER AND MERKEL JJ An application was made to the Full Court of the Federal Court of Australia on 15 March 1996 for the issue of writs of prohibition and/or certiorari against Wilcox J, a judge of the Federal Court, in relation to an order made by him pursuant to s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). ("the CVA").

2. The order was that a civil proceeding instituted in the Federal Court of Australia by the Trade Practices Commission (now the Australian Competition and Consumer Commission) ("the Commission"), in which matters for determination arose under Division 1 of Part V of the Trade Practices Act 1974 (Cth) ("the TPA"), be transferred to the Supreme Court of New South Wales ("the Supreme Court").

3. The applicants for the writs are Venture Industries Pty Ltd ("Venture"), Harry Kioussis and Penny Kioussis ("the applicants") who are respondents, together with others, in the proceeding instituted by the Commission.

4. On 5 February 1996 Venture applied pursuant to s.75(v) of the Constitution to Gaudron J in the High Court of Australia for an order nisi to show cause why the writs should not issue. Gaudron J declined to grant the orders sought and remitted the application to the Full Court of the Federal Court pursuant to s.44 of the Judiciary Act 1903 (Cth). In this court Harry Kioussis and Penny Kioussis, were added as applicants.

5. Under s.44 the Full Court has, and may exercise, the jurisdiction which the High Court has in the matter pursuant to s.75(v).

6. The contention of the applicants is that Wilcox J had no jurisdiction to make an order transferring to the Supreme Court the proceeding instituted by the Commission, for the reason that the proceeding was within the exclusive jurisdiction of the Federal Court under the TPA.

7. Wilcox J has been functus officio in respect of the matter since his order. However, it is contended that although the hearing, but not the determination, of the proceeding before Hunter J in the Supreme Court has concluded, the order of Wilcox J remains as the source of the jurisdiction of Hunter J. Accordingly, it was said, prohibition or certiorari, or both, lie in respect of the order of Wilcox J, without which, Hunter J will have no jurisdiction to determine the matter. Prohibition was not sought against Hunter J.

8. The contentions raise three important questions:-

(a) Does the CVA confer jurisdiction or power on the Federal

Court to make an order transferring a proceeding to a Supreme

Court notwithstanding that, under the TPA, the determination of

the matter the subject of the proceedings was within the

exclusive jurisdiction of the Federal Court under the TPA?

(b) Does a writ of prohibition which is sought under s.75(v)

of the Constitution on the basis of absence of jurisdiction on

the face of the proceeding issue as of right or does the Court

have a discretion to refuse it?

(c) Should the Court refuse to issue writs of prohibition

and/or certiorari in the present case in the event that it

concludes that Wilcox J had no jurisdiction or power to make the

order he did?

9. Initially, it is necessary to consider the course of the proceeding to date and the jurisdiction and power conferred on the Federal Court or invested in the State courts under the TPA and the CVA. In view of the applicants' reliance on the enactments in question as a co-ordinated legislative scheme dealing with cross-vesting, we examine the enactments in the form they were in when first enacted and then as later amended.

10. On 3 December 1993 the Commission commenced a proceeding in the Federal Court seeking relief under Part VI of the TPA in respect of alleged breaches of ss.52 and 53 which are in Division 1 of Part V of that Act.

11. The Commission sued on its own behalf and on behalf of seven pairs of individuals, each of whom was alleged to have been misled by conduct of the respondents. The first group of respondents was comprised of Colling Construction Co. Pty Limited and two individuals claimed to be associated with the company ("the Collings respondents"). The second group was comprised of the applicants.

12. It was alleged that the Collings respondents engaged in conduct in breach of ss.52 and 53 in relation to statements which induced members of the public, including the seven pairs of individuals represented by the Commission, to enter into contracts for the design and construction of houses. It was contended by the Commission, that the Collings respondents passed on potential clients to Venture which persuaded those clients to sign building contracts with it. It was alleged that the applicants built upon the misrepresentations of the Collings respondents by making further misrepresentations in relation to Venture's "excellence" as a builder.

13. In the result, it appears that building work was carried out by Venture pursuant to contracts with the seven couples. There were complaints of bad workmanship and allegations that in some cases building owners demolished the partly constructed building and started again with another building. In other cases rectification work was undertaken.

14. Although some compensation was received by the individuals concerned, the Commission claimed that it was less than the loss suffered which, inter alia, it was claiming on their behalf.

15. By Notice of Motion dated 12 August 1994 the Commission applied to Wilcox J in the Federal Court for an order that the proceeding instituted by it be transferred to the Supreme Court of New South Wales pursuant to s.5 of the CVA.

16. After a contested hearing, on 16 September 1994 Wilcox J ordered, pursuant to s.5(4) of the CVA, that the proceeding be transferred to the Supreme Court.

17. In his reasons for judgment Wilcox J concluded that there should be a court controlled arbitration of many of the matters in dispute and that, as the Supreme Court had greater flexibility and power in relation to court controlled arbitrations than the Federal Court, a transfer of the proceeding to that Court was "in the interests of justice" (see CVA s.5(4)(b)(iii)).

18. Venture submitted to Wilcox J that he had no jurisdiction to make the order sought by the Commission for the transfer of the proceeding. It was submitted that the jurisdiction conferred or invested generally under the CVA was subject to, and had to be read down to accord with, the specific and exclusive jurisdiction conferred on the Federal Court under ss.86 and 86A of the TPA which did not empower a transfer of the proceeding instituted by the Commission.

19. The submission was rejected by his Honour who concluded that he had jurisdiction under s.5(4) of the CVA to order the transfer of the proceeding to the Supreme Court.

"Pursuant to the notice of motion filed on behalf of the

applicant on 12 August 1994 and s.5(4) of the Jurisdiction of

Courts (Cross-vesting) Act 1987, the proceeding be transferred to

the Supreme Court of New South Wales."

21. No appeal was instituted from the order although before us Senior Counsel for the applicants said that that issue had "troubled" him but the view was formed that s.13(a) of the CVA prevented such an appeal. The proceeding in the Supreme Court of New South Wales

22. Pursuant to the order the proceeding was transferred to the Supreme Court. Thereafter it was conducted in accordance with the directions of Hunter J. The following events occurred:-

1. On or about 14 October 1994 the applicants served a Notice

of Motion seeking, inter alia, a declaration that the Supreme

Court had no jurisdiction to determine the issues raised by the

Commission in the proceeding. After directions by Hunter J for

the exchange of submissions on the jurisdictional issue, Senior

Counsel for the applicants informed the Court that the motion was

not being proceeded with "for commercial reasons." It now appears

that those reasons related to the question of costs. His Honour

was informed that the applicants would contend at trial that the

Supreme Court had no jurisdiction and that the applicants'

participation in the proceedings was without prejudice to that

contention.

2. On 17 November 1994 the applicants filed their defences

which restated their contention that the Supreme Court had no

jurisdiction in the matter.

3. Pursuant to directions given by Hunter J, the building and

construction issues were referred to a Court appointed referee

pursuant to Part 72 of the Supreme Court Rules.

4. On 10 March 1995 Senior Counsel for the applicants

unsuccessfully applied to Hunter J for directions that certain

matters, including the jurisdictional issue, should be heard and

determined prior to the referral of the building and construction

issues.

5. The building and construction issues were heard over 13

hearing days before the Court appointed referee. All parties were

represented at the hearing. The applicants unsuccessfully opposed

the adoption of the referee's report, which was adopted by Hunter

J, subject to certain matters, on 28 September 1995.

6. The final hearing of the proceeding before Hunter J in the

Commercial Division of the Supreme Court proceeded over 27

hearing days between 9 October 1995 and 29 December 1995. In

final submissions the applicants restated their contention that

the Court was without jurisdiction in the matter. They submitted

that the Order of Wilcox J did not bind the Supreme Court and was

"a nullity and can simply be ignored." On 28 November 1995

Hunter J reserved his decision.

7. Senior Counsel for the applicants informed the Court that

Hunter J has not yet handed down his decision but had indicated

to the parties that he had satisfied himself that he had

jurisdiction.

8. In the various proceedings in the Supreme Court the

Commission incurred solicitor-client costs, including counsels'

fees, in the sum of $1,304,060.

The Jurisdiction of Courts (Miscellaneous Amendments) Act 1987

23. On 22 October 1986, what later became the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 and the CVA, were introduced as consecutive Bills in the House of Representatives. Each had an identical legislative history with all steps in that process, including assent on 26 May 1987, occurring on the same day.

24. The first Bill became Act No. 23 of 1987. It added s.75B(2) to the TPA, repealed s.86 and substituted a new s.86 and s.86A ("the 1987 TPA Amendments"). The second Bill (later to become the CVA) became Act No. 24 of 1987.

25. Prior to its repeal s.86 of the TPA provided as follows:

"Jurisdiction of Court

86. Jurisdiction is conferred on the Court to hear and determine

actions, prosecutions and other proceedings under this Part and

that jurisdiction is exclusive of the jurisdiction of any other

court, other than the jurisdiction of the High Court under

section 75 of the Constitution."

26. In Phillip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457, Mason J, in considering the effect of s.86 in the light of the background provided by ss.75-77 of the Constitution, said at 506-7 -

"The content of federal jurisdiction, described in ss.75 and

76 of the Constitution, is expressed in terms of 'matters'. The

federal jurisdiction which s.86 confers on the Federal Court in

the present case is jurisdiction in relation to 'matters' arising

under a law made by the Parliament (Constitution, s.76(ii)).

Because s.86 refers to 'actions, prosecutions and other

proceedings under this Part' and Pt VI provides for actions,

prosecutions and proceedings in which penalties and fines may be

imposed and injunctions and damages awarded (see ss.76, 77, 79,

80 and 82), s.86 is a law which defines the jurisdiction of a

federal court with respect to 'matters' mentioned in s.76(ii)

pursuant to s.77(i) and makes that jurisdiction exclusive of that

which belongs to the States pursuant to s. 77(ii)."

(See also Carlton and United Breweries Ltd v. Castlemaine Tooheys Ltd. (1986) [1986] HCA 38; 161 CLR 543 at 552 and NEC Information Systems Pty. Ltd. v. Iveson (1992) 36 FCR 258 at 263 in relation to the constitutional background).

27. The relevant amendments made to the TPA in 1987 were as follows:

"Jurisdiction of courts

86. (1) Jurisdiction is conferred on the Federal Court in

any matter arising under this Act in respect of which a civil

proceeding has, whether before or after the commencement of this

section, been instituted under this Part.

(2) The several courts of the States are invested with

federal jurisdiction within the limits of their several

jurisdictions, whether those limits are as to locality,

subject-matter or otherwise, and, subject to the Constitution,

jurisdiction is conferred on the several courts of the

Territories, with respect to any matter arising under Division 1

or 1A of Part V in respect of which a civil proceeding is

instituted by a person other than the Minister or the

Commission.

(3) Nothing in subsection (2) shall be taken to enable an

inferior court of a State or Territory to grant a remedy other

than a remedy of a kind that the court is able to grant under

the law of that State or Territory.

(4) The jurisdiction conferred by subsection (1) on the

Federal Court is exclusive of the jurisdiction of any other

court other than the jurisdiction of the several courts of the

States and Territories under subsection (2) and the jurisdiction

of the High Court under section 75 of the Constitution.

Transfer of matters

86A. (1) Where:

(a) a civil proceeding instituted (whether before or after

the commencement of this section) by a person other than the

Minister or the Commission is pending in the Federal Court; and

(b) a matter for determination in the proceeding arose under

Division 1 or 1A of Part V;

the Federal Court may, subject to subsection (2), upon the

application of a party or of the Federal Court's own motion,

transfer to a court of a State or Territory the matter referred

to in paragraph (b) and may also transfer to that court any

other matter for determination in the proceeding.

(2) The Federal Court shall not transfer a matter to another

court under subsection (1) unless the other court has power to

grant the remedies sought before the Federal Court in the matter

and it appears to the Federal Court that:

(a) the matter arises out of or is related to a proceeding

that is pending in the other court; or

(b) it is otherwise in the interests of justice that the

matter be determined by the other court.

(3) Where the Federal Court transfers a matter to another court

under subsection (1):

(a) further proceedings in the matter shall be as directed

by the other court; and

(b) the judgment of the other court in the matter is

enforceable throughout Australia and the external Territories as

if it were a judgment of the Federal Court.

(4) Where:

(a) a proceeding is pending in a court (other than the

Supreme Court) of a State or Territory; and

(b) a matter for determination in the proceeding arose under

Division 1 or 1A of Part V;

the court shall, if directed to do so by the Federal Court,

transfer to the Federal Court the matter referred to in

paragraph (b) and such other matters for determination in the

proceeding the determination of which would, apart from any law

of a State or of the Northern Territory relating to

cross-vesting of jurisdiction, be within the jurisdiction of the

Federal Court as the Federal Court determines.

(5) Where:

(a) a proceeding is pending in a court (other than the

Supreme Court) of a State or Territory; and

(b) a matter for determination in the proceeding arose under

Division 1 or 1A of Part V;

the court may, subject to subsection (6), upon the application

of a party or of the court's own motion, transfer to a court

(other than the Supreme Court) of a State or Territory other

than the State or Territory referred to in paragraph (a) the

matter referred to in paragraph (b).

(6) A court shall not transfer a matter to another court

under subsection (5) unless the other court has power to grant

the remedies sought before the first-mentioned court in the

matter and it appears to the first-mentioned court that:

(a) the matter arises out of or is related to a proceeding

that is pending in the other court; or

(b) it is otherwise in the interests of justice that the

matter be determined by the other court.

(7) Where a court transfers a matter to another court under

subsection (5), further proceedings in the matter shall be as

directed by the other court."

28. Act No.222 of 1992 introduced Part IVA (unconscionable conduct) into the TPA. That led to amendments, inter alia, to ss.86 and 86A, which resulted in matters arising under Part IVA being treated in the same way as matters arising under Division 1 or IA of Part V.

29. The 1987 amendments to the TPA had a number of consequences.

1. Section 86(1) conferred jurisdiction on the Federal Court

in respect of "any matter" arising under the TPA. (See 76(ii)

and 77(i) of the Constitution). The jurisdiction in respect of

"matters" arising under the TPA was wider than the jurisdiction

previously conferred under the repealed section which was in

respect of "proceedings".

2. Section 86(2) invested or conferred (as the case may be)

the several courts of the States and Territories, including

inferior courts, with federal jurisdiction but only in "any

matter arising under Division 1 or 1A of Part V in respect of

which a civil proceeding is instituted by a person other than

the Minister of the Commission". (See ss.76(ii) and 77(iii) of the

Constitution).

3. The jurisdiction conferred in "matters" on the Federal

Court under s.86(1) was exclusive of the jurisdiction of any

other court other than the jurisdiction invested or conferred on

State or Territory Courts under s.86(2) and the High Court under

s.75 of the Constitution: see ss.76(ii) and 77(iii) of the

Constitution.

4. Sections 86(1) and (2) were concerned with the conferral

or investment of jurisdiction respectively. Section 86(4)

defined the extent to which the jurisdiction conferred on the

Federal Court was exclusive.

5. Section 86A was concerned with the separate and discrete

subject of the power of the Federal Court to transfer a matter,

within its jurisdiction, which had arisen under Division 1 or 1A

of Part V in a proceeding instituted by a person other than the

Minister or the Commission. As was the case with the investment

or conferral of jurisdiction, the power to transfer was limited

to matters under Division 1 or 1A of Part V (and, since 21

January 1993, Part IVA) which arose in a proceeding instituted

by a person other than the Minister or the Commission.

6. Under the statutory scheme the power to transfer under

s.86A was to be exercised by transfer to courts in which

jurisdiction is invested or conferred, as the case may be, under

s.86(2).

7. A transfer under s.86A(1) is not of a proceeding, but is

of the matter for determination in a proceeding. However, it is

implicit in the statutory scheme that the exercise of the power

to transfer a matter for determination in a proceeding will

usually have the practical effect of transferring the further

hearing and determination of the proceeding to the State or

Territory court to which the matter for determination has been

transferred.

8. In using a "matter" rather than a "proceeding" as the

subject matter for conferral, investment and transfer under

ss.86 and 86A of the TPA, the legislature was referring to a

matter in the constitutional sense used in Chapter III. For

present purposes it is sufficient to state that, in that sense,

a "matter" does not mean a legal proceeding but rather the

justiciable controversy or dispute, or the subject matter for

determination, in a legal proceeding. (See In re Judiciary and

Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265 and Fencott v. Muller

(1983) 152 CLR 570 at 602-610).

30. Section 86A confers a limited but specific power to transfer a matter, as there described, arising in a proceeding instituted by a person other than the Commission or the Minister, to a court upon which jurisdiction in respect of the matter is invested or conferred under s.86.

The Jurisdiction of Courts (Cross-Vesting) Act 1987

31. The CVA was part of a co-ordinated federal and State legislative response to the "arid" jurisdictional disputes that bedevilled litigation in the earlier part of the 1980's: see Fencott v. Muller at 609 (per Mason, Murphy, Brennan and Deane JJ).

32. The object of the CVA was stated in its preamble -

"WHEREAS inconvenience and expense have occasionally been

caused to litigants by jurisdictional limitations in federal,

State and Territory courts, and whereas it is desirable -

(a) to establish a system of cross-vesting of jurisdiction

between those courts, without detracting from the existing

jurisdiction of any court;

(b) to structure the system in such a way as to ensure as

far as practicable that proceedings concerning matters which,

apart from this Act and any law of a State relating to

cross-vesting of jurisdiction, would be entirely or

substantially within the jurisdiction (other than any accrued

jurisdiction) of the Federal Court or the Family Court or the

jurisdiction of a Supreme Court of a State or Territory are

instituted and determined in that court, whilst providing for

the determination by one court of federal and State matters in

appropriate cases; and

(c) if a proceeding is instituted in a court that is not

the appropriate court, to provide a system under which the

proceeding will be transferred to the appropriate court.

(Emphasis added)"

33. We have emphasised aspects of the object as stated to demonstrate that it embraces a transfer of proceedings concerning matters in which, apart from the CVA, jurisdiction may be "entirely" within a Federal Court, and therefore must, apart from the CVA, be determined in that court. Nevertheless, provision is made to enable the transfer of such proceedings to another court if that is the appropriate court and the Federal Court is not the appropriate court.

34. The order of Wilcox J in the present case was made on that basis.

35. Under the CVA, federal jurisdiction was invested or conferred (as the case may be) by s.4 which provided:

"Additional jurisdiction of certain courts

4. (1) Where:

(a) the Federal Court or the Family Court 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 Supreme Court of a State or Territory would not,

apart from this section, have jurisdiction with respect to that

matter;

then:

(c) in the case of the Supreme Court of a State (other than

the Supreme Court of the Northern Territory)- that court is

invested with federal jurisdiction with respect to that matter; or

(d) in the case of the Supreme Court of a Territory

(including the Northern Territory)- jurisdiction is conferred on

that court with respect to that matter.

(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.

(4) This section does not apply to a matter arising under the

Conciliation and Arbitration Act 1904; or under s.45D or 45E of

the Trade Practices Act 1974."

36. Gummow J considered s.4 in Poignand v. NZI Securities Ltd. and Ors. [1992] FCA 369; (1992) 37 FCR 363 and observed (at 368) that the section only invests jurisdiction in a court, if apart from the section, it did not have jurisdiction in the matter. He added that, if the investment is under s.86 of the TPA, s.4 does not operate to invest federal jurisdiction in the Supreme Courts with respect to the matter.

37. We would add that the corollary appears to be that, if State courts are not invested with TPA jurisdiction under s.86, then s.4 can operate to invest the courts with that jurisdiction. We demonstrate later that matters arising under Part IV of the TPA (apart from s.45D and 45E) constitute an example of TPA jurisdiction not invested in State courts under s.86 but invested in State Supreme Courts under s.4(1) of the CVA when enacted in 1987.

38. Section 5 of the CVA is concerned with the separate and discrete subject of the power, inter alia, of federal courts to transfer proceedings. Section 5(4), with which we are concerned in the present case, provided as follows:

"Transfer of proceedings

5(4) Where:

(a) a proceeding (in this subsection referred to as the

"relevant proceeding") is pending in the Federal Court or the

Family Court (in this subsection referred to as the "first

court"); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to,

another proceeding pending in the Supreme Court of a State or

Territory and it is more appropriate that the relevant proceeding

be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, apart from

this Act and any law of a State relating to cross-vesting of

jurisdiction, the relevant proceeding or a substantial part of

the relevant proceeding would have been incapable of being

instituted in the first court and capable of being instituted in

the Supreme Court of a State or Territory;

(B) the extent to which, in the opinion of the first court,

the matters for determination in the relevant proceeding are

matters arising under or involving questions as to the

application, interpretation or validity of a law of the State or

Territory referred to in sub-subparagraph (A) and not within the

jurisdiction of the first court apart from this Act and any law

of a State relating to cross-vesting of jurisdiction; and

(C) the interest of justice;

it is more appropriate that the relevant proceeding be

determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the

relevant proceeding be determined by the Supreme Court of a State

or Territory;

the first court shall transfer the relevant proceeding to that

Supreme Court.

Section 5(7) provides that:

(7) A court may transfer a proceeding under this section on the

application of a party to the proceeding, of its own motion or on

the application of the Attorney-General of the Commonwealth or of

a State or Territory."

39. Under the CVA, provision was made for matters defined as "special federal matters" to be determined in federal rather than State or Territory courts unless there were special reasons for the Supreme Court to order that that not occur. Section 6 provided:

"Special federal matters

6. (1) Where a matter for determination in a proceeding that

is pending in the Supreme Court of a State or Territory is a

special federal matter, the Supreme Court shall transfer the

proceeding to the Federal Court unless that Supreme Court makes

an order that the proceeding be determined by that Supreme

Court.

(2) The Supreme Court of a State or Territory shall not make an

order under sub-section (1) that the court determine a

proceeding unless it appears to that Supreme Court that, by

reason of the particular circumstances of the case -

(a) it is not appropriate that the proceeding be transferred

to the Federal Court; and

(b) it is appropriate that the Supreme Court determine the

proceeding.

(3) Where the Supreme Court of a State or Territory makes an

order under sub-section (1) in relation to a proceeding, it is

the duty of the court not to proceed to determine the proceeding

unless the court is satisfied that -

(a) a notice in writing stating that the order has been made

and specifying the nature of the special federal matter for

determination in the proceeding has been given to the

Attorney-General; and

(b) a reasonable time has elapsed since the giving of the

notice for consideration by the Attorney-General of the question

whether action should be taken under sub-section (7) in relation

to the proceeding.

.....

(7) The Attorney-General may request the Supreme Court of a

State or Territory in which a proceeding referred to in

sub-section (1) is pending to transfer the proceeding to the

Federal Court and, where such a request is made, that Supreme

Court shall transfer the proceeding to the Federal Court."

40. A "special federal matter" was defined in s.3(1) as meaning:

"s.3(1) "special federal matter" means

(a) a matter arising under Part IV (other than section 45D

of 45E) of the Trade Practices Act 1974;

(b) a matter involving the determination of questions of law

on appeal from a decision of, or of questions of law referred or

stated by, a tribunal or other body established by an Act or a

person holding office under an Act, not being a matter for

determination in an appeal or a reference or case stated to the

Supreme Court of a State or Territory under a law of the

Commonwealth that specifically provides for such an appeal,

reference or case stated to such a court;

(c) a matter arising under the Administrative Decisions

(Judicial Review) Act 1977;

(d) a matter arising under section 32 of the National Crime

Authority Act 1984; or

(e) a matter that is within the original jurisdiction of the

Federal Court by view of section 39B of the Judiciary Act 1903;"

being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction;

41. The definition is of importance as it included matters arising under Part IV of the TPA (other than matters arising under ss.45D and 45E which were excluded by s.4(4) from the jurisdiction conferred or invested under s.4(1)) which are within the exclusive jurisdiction of the Federal Court under s.86(4) of the TPA.

42. The inclusion of those Part IV matters in the CVA as special federal matters capable of being determined in a State or Territory Supreme Court, can only be upon the premise that the legislature intended that s.4(1) invest or confer jurisdiction in such matters on those courts, notwithstanding that under the TPA they are within the exclusive jurisdiction of the Federal Court.

43. Once it is accepted that matters within the exclusive jurisdiction of the Federal Court under the TPA are invested in State Supreme Courts under the CVA it is difficult to perceive any relevant distinction in s.4 of the CVA, between matters arising under Part IV and matters arising under Division I or IA of Part V (and later Part IVA) in proceedings in which the Minister or the Commission is a party. In both cases the Federal Court's jurisdiction in the matter is exclusive under s.86(4), but appears to be invested or conferred under s.4(1) as neither category is excluded under s.4(4).

44. That approach is consistent with the observation of the Full Court of the Federal Court in NEC Information Systems at 265-6 that s.4(4) of the CVA specified certain matters in which the Federal Court has exclusive jurisdiction conferred by other laws, being the jurisdiction to which s.4(1) of the CVA does not apply. The Court stated that in these cases the "manifest object" of the CVA was not to disturb the conferral of exclusive jurisdiction on the Federal Court because in the view of the Parliament there is particular utility in maintaining that position.

45. However, as we demonstrate below if the legislature does not employ s.4(4) for that purpose then it should be taken to have intended to disturb the conferral of exclusive jurisdiction under the other legislation.

46. In that regard it is necessary to consider carefully the operation of s.4(4) as first enacted and as later amended.

47. The other category of matters excluded from s.4(1) by s.4(4) as first enacted were matters arising under the Conciliation and Arbitration Act (1904) (Cth). Under that Act some matters were within the jurisdiction of State courts and other matters were within the jurisdiction of the Australian Industrial Court which was transferred to the Industrial Division of the Federal Court by s.118A of the Conciliation and Arbitration Act. Under s.113(4) of that Act the appellate jurisdiction of the Australian Industrial Court in respect of appeals from State and Territory courts not being a Supreme Court was exclusive of the jurisdiction of State or Territory courts.

48. Accordingly, both of the initial exclusions under s.4(4) of the CVA from the jurisdiction invested or conferred by s.4(1), included matters defined to be within the exclusive jurisdiction of the Federal Court under the TPA and the Conciliation and Arbitration Act. That use of s.4(4) in the CVA again suggests a legislative intent that the CVA was to operate according to its own provisions in addition to and independently of other legislation.

49. Later additions to the matters excluded by s.4(4) confirm that conclusion.

50. Matters arising under the Native Title Act 1993 (Cth) were later excluded from s.4(1) by s.4(4) of the CVA notwithstanding that under s.81 of the Native Title Act applications for native title determinations were, apart from the High Court, within the exclusive jurisdiction of the Federal Court.

51. The legislature (which in Act No. 110 of 1993 enacted both the relevant amendment to s.4(4) and the Native Title Act) appears to have intended that it was the exclusion of those matters from s.4(1) by s.4(4) of the CVA, rather than the exclusivity conferred under s.81, that resulted in that exclusivity not being disturbed by s.4(1) of the CVA.

52. Other amendments to s.4(4) were made on a similar basis. Parliament excluded matters arising under the Industrial Relations Act 1988 (Cth) notwithstanding that under s.414 of that Act some of those matters were within the exclusive jurisdiction of the Industrial Relations Court of Australia.

53. The exclusion from s.4(1) of the CVA, by amendment to s.4(4), of matters arising under the TPA in relation to ss.46A, 155A and 155B of the TPA was effected notwithstanding that such matters were within the exclusion jurisdiction of the Federal Court under s.86(4) of the TPA.

54. In our view the legislative history of s.4 demonstrates a clear legislative intention that if the exclusivity of jurisdiction of the Federal Court provided for in other legislation was not to be disturbed by the CVA, then that was to be achieved by the exclusion of such matters from s.4(1) by means of those matters being stated as excluded under s.4(4).

55. However, there is one aspect of the CVA that requires special consideration. Matters arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") are not excluded from s.4(4) and are special federal matters under ss.3(1) and 6. Accordingly jurisdiction in such matters may be invested in Supreme Courts under Commonwealth legislation or s.4(1).

56. However, s.9 of the ADJR Act provides that, notwithstanding anything contained in any Act other than the ADJR Act, a court of a State does not have jurisdiction to "review" (as defined in the section) the matters there referred to.

57. Although the matter was not argued before us we would expect that the CVA would not affect the express restriction on the power of the State courts to "review" under the ADJR Act. Those restrictions were to apply "notwithstanding anything contained in any Act". Consequently the jurisdiction of State courts in matters arising under the ADJR Act is likely to be subject to the express restrictions on the power of State courts set out in s.9.

58. Section 10 of the CVA specifically provides for the transfer of proceedings involving matters arising under Division 1 or 1A of Part V of the TPA, if a Territory or State court other than the Supreme Court has jurisdiction in the matter.

59. On the basis of the analysis we have undertaken it can be concluded that, if the Part V matter arises in a proceeding not instituted by the Commission or the Minister, jurisdiction is invested in the Supreme Court under s.86(2) of the TPA and not s.4(1) of the CVA. However, if the proceeding in respect of such a matter is instituted by the Commission or the Minister the jurisdiction is invested under s.4(1) and not s.86(2).

"10. Where -

(a) a proceeding is pending in the Federal Court, the Family

Court or the Supreme Court of a State or Territory;

(b) a matter for determination in the proceeding is a matter

arising under Division 1 or 1A of Part V of the Trade Practices

Act 1974;

(c) no matter for determination in the proceeding is a

special federal matter;

(d) the proceeding is not a proceeding by way of an appeal

from a judgment of a court; and

(e) a court of a State or Territory, other than the Supreme

Court of that State or Territory, has jurisdiction with respect

to all of the matters for determination in the proceeding,

the court referred to in paragraph (a) may, on the application of

a party to the proceeding or of its own motion,

transfer the proceeding to the court referred to in paragraph

(e)."

61. Section 10, with its specific but different provision for the transfer of proceedings in relation to matters arising under Division 1 or 1A of Part V of the TPA (and as from 21 January 1993 Part IVA) clearly provides an additional but overlapping source of power for the transfer of proceedings in relation to those matters. It is additional as its provisions are different to s.86A of the TPA and s.5(4) of the CVA. It is overlapping in that, inter alia, it involves transfers to inferior courts, but not Supreme Courts (cf. s.5(4)), in circumstances which also enable a transfer, albeit of the "matter" the subject of the proceeding, to be made under s.86A.

62. Finally, orders for transfer of a matter under s.86A(1) of the TPA may be the subject of an appeal, but no appeal lies from an order for transfer of a proceeding "under" the CVA.

"13. An appeal does not lie from a decision of a court -

(a) in relation to the transfer or removal of a proceeding under

this Act;"

64. In addition to the amendments to the CVA we have already referred to, the other relevant amendments made since 1987 include the following:

(a) the definition of "special federal matter" in s.3(1) was

amended to include any matter arising under Part IV of the TPA -

the prior exclusion of matters arising under ss.45D and 45E of

Part IV was deleted;

(b) s.6 was repealed by Act No. 165 of 1992 and a new section

substituted for it. In general, the amended section 6 retained

special legislative provision for "special federal matters" to be

heard in the Federal Court but conferred wider power on a Supreme

Court to determine the proceeding if "satisfied that there are

special reasons for doing so....".

65. In the light of our discussion of the CVA a number of conclusions can be stated.

66. Section 4(1) of the CVA is concerned with the investment or conferral of jurisdiction on State and Territory Supreme Courts in all civil "matters" in which:

(a) the Federal Court has jurisdiction;

(b) the Supreme Court would not, apart from the section, have

jurisdiction.

67. The exceptions provided for in the section are the "matters" arising under the legislation referred to in s.4(4) as amended from time to time.

68. Section 5 of the CVA is concerned with the power of courts to transfer "proceedings". It does not invest or confer jurisdiction. In NEC Information Systems at 264-5 the Court re-iterated that the CVA does not operate to confer upon the Federal Court any fresh federal jurisdiction in addition to that conferred upon it by other laws of the Parliament. (See also Kodak (Australasia) Pty. Ltd. v. Commonwealth [1988] FCA 438; (1988) 22 FCR 197; Courtice v. Australian Electoral Commission (1990) 21 FCR 554 and Bond v. Sulan (1990) 26 FCR 580 at 584).

69. The scheme of the CVA, and in particular s.5(4), is that in a case such as the present, the proceeding will only be transferred by the Federal Court to a court which has jurisdiction to hear and determine the matter the subject of the proceeding.

70. In the final analysis, in respect of a transfer under s.5, it matters not whether the jurisdiction of the Supreme Court is invested or conferred under s.4 of the CVA or under another enactment (e.g. s.86(2) of the TPA). Nor does it appear to matter that under that other enactment the jurisdiction conferred on the Federal Court was exclusive (e.g. Part IV of the TPA).

71. Jurisdiction in a matter arising under Division 1 of Part V of the TPA in a proceeding instituted by the Commission is not expressed to be a matter excluded from the operation of s.4(1) by s.4(4).

72. Accordingly, in our view, the provisions of the CVA operate to invest the Supreme Court with jurisdiction in the present matter under s.4(1).

73. If that conclusion is correct then at all material times, by reason of s.4(1), the Supreme Court has had jurisdiction to hear and determine the matters arising for determination in the proceeding instituted by the Commission and there would be no basis for contending that Wilcox J had no power to order the transfer of that proceeding to the Supreme Court under s.5(4) of the CVA.

74. Senior Counsel for the applicants submitted to us that the generality of the provisions of the CVA, must somehow be subject to, or be read down to give effect to, the manifest object of the 1987 TPA amendments as expressed in ss.86 and 86A. That object is said to be that jurisdiction in the matters described in s.86(4) shall be, and remain, within the exclusive jurisdiction of the Federal Court. In giving effect to that object those matters were excluded from the power to transfer under s.86A. It is then said, that those matters ought not to be treated as within the non-exclusive jurisdiction of the Federal Court and within its power to transfer to the Supreme Court, under the CVA, which was enacted as part of the same legislative scheme.

75. The applicants' submissions are said to find support in two maxims of construction.

76. The first is generalia specialibus non derogant. The principle is stated by O'Connor J in Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14 as follows:

"Where there is a general provision which, if applied in its

entirety, would neutralise a special provision dealing with the

same subject matter, the special provision must be read as a

proviso to the general provision, and the general provision, in

so far as it is inconsistent with the special provision, must be

deemed not to apply."

77. The second maxim is expressum facit cessare tacitum. Dixon J in R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 described that principle in the following terms:

"an enactment in affirmative words appointing a course to be

followed usually may be understood as importing a negative,

namely, that the same matter is not to be done according to some

other course."

78. It is correct to say that the 1987 TPA amendments and the CVA when first enacted, and as subsequently amended, are to be treated and considered as part of a co-ordinated Commonwealth legislative scheme to deal with cross-vesting. Accordingly it is appropriate to examine the scheme, consider the statutory operation and interaction of the two enactments and endeavour to interpret each of them as part of and re-inforcing the scheme: WR Moran Pty. Ltd. v. DCT for NSW (1940) AC 838 at 847-9. See also Palmer's Case (1785) 1 Leach CC 4th Ed. 355.

79. On the other hand insofar as it is contended that there are apparently inconsistent provisions in the two enactments the task of the Court is to give effect to the legislative intention in each Act and if possible interpret the statutes in question by reconciling the alleged inconsistencies so that each is able to live with the other: South Eastern Drainage Board (S.A.) v. Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 626-7 per Dixon J.

80. We have approached our examination of the two Acts with these principles in mind but the problem with the submissions of the applicants is that they find no support in the CVA. Its manifest object, as was stated in NEC Information Systems at 265-6 was, inter alia, the investment of federal jurisdiction in State Supreme Courts under s.4(1), if that jurisdiction is not elsewhere invested in those Courts, in all matters save for those excluded in s.4(4).

81. Upon that investment, or in the event of an investment of such jurisdiction elsewhere, the CVA provided a scheme for the transfer of a proceeding involving the exercise of jurisdiction in matters not excluded under s.4(4), to the appropriate court for its determination.

83. It was not suggested to us how the general words of s.4(1) or s.5(4) were to be read down. It may be suggested that the "jurisdiction" referred to in s.4(1)(a) is to be construed as limited to the non-exclusive jurisdiction of the federal courts referred to in that sub-section. But as we have pointed out, at all times the CVA has made specific provision for the transfer to State Courts of matters which are within the exclusive jurisdiction of the Federal Court under other legislation, including matters arising under Part IV of the TPA.

84. Any justification for treating the CVA as in some way generally subject to the TPA is difficult to accept when regard is had to the nature and extent to which express provision was made in the CVA for matters arising under the TPA. The provisions include:

(a) the initial exclusion of matters arising under ss.45D and

45E of Part IV from s.4(1) by s.4(4);

(b) the inclusion of all other matters arising under Part IV

as special federal matters (ss.3(1) and s.6);

(c) proceedings involving matters arising under Division 1 or

1A of Part V (and later Part IV) being able to be made the

subject of an order for transfer under s.10.

85. Further, the differences in relation to the provisions for transfer which exist between the statutory schemes for cross-vesting under the 1987 TPA amendments and the CVA strongly suggest that the legislature intended each enactment to operate separately according to its own provisions.

86. Under ss.86 and 86A of the TPA the transfer order:

(a) may be to inferior courts as well as to Supreme Courts;

(b) is of a "matter" as there described;

(c) is subject to appeal;

(d) may be sought upon application by a party or of the

court's own motion;

(e) may be made by the Federal Court, or in the special

circumstances set out in s.86A(5), by a State or Territory court

other than a Supreme Court to another State or Territory court

other than a Supreme Court.

(a) is only to Supreme Courts;

(b) is of the proceeding not the "matter";

(c) is not subject to appeal;

(d) may be sought upon application by a party, of the court's

own motion or on the application of the Attorney-General of the

Commonwealth or of a State or Territory; (see s.5(7) of the CVA).

(e) may be made by the Federal Court, federal or State Family

Courts or a State or Territory Supreme Court. (See ss.5(1), (2),

(3), (4) and (5)).

88. In our view the matters we have outlined lead to the conclusion that a manifest object of the cross-vesting legislative scheme as enacted by the Commonwealth in 1987 was for the TPA and the CVA to provide separate, albeit overlapping, but additional sources:

(a) for the conferral and investment of federal jurisdiction

on Supreme Courts;

(b) of power to transfer matters, or proceedings in respect

of matters, arising under Commonwealth legislation to or from

those courts (as the case may be).

89. In giving effect to that object the CVA provided an additional source for the conferral and investment of jurisdiction and of power to transfer proceedings involving matters arising under the TPA but particularly under Parts IV and V of that Act.

90. Thus, a proceeding instituted in the Federal Court by the Commission involving a matter arising under Division 1 of Part V of the TPA may be the subject of an order for transfer under s.5(4) or s.10 of the CVA. A matter arising under Part IV of the TPA in a proceeding in the Federal Court may be the subject of an order for transfer under s.5(4) of the CVA. That is so, notwithstanding that those proceedings and the matters to be determined in them would not be able to be made the subject of an order for transfer under s.86A.

91. The specific, but different provisions, in relation to the power to transfer in the two Acts and in different sections of the one Act, may be relevant to the issue of discretion in relation to the circumstances in which the power to transfer ought to be exercised, but are not relevant to the existence of that power.

92. Accordingly, far from the CVA being inconsistent with the TPA, in providing the additional sources of jurisdiction and power as outlined above, the CVA adds to and re-inforces the cross-vesting scheme provided for under the two Acts.

93. The subsequent amendments to the TPA and the CVA which we referred to earlier are consistent with that conclusion. Those amendments appear to assume that the 1987 TPA amendments and the CVA constitute overlapping but additional sources of jurisdiction in respect of matters arising under federal legislation. We have already explained why the additional matters added to s.4(4) (e.g. matters arising under the Native Title Act 1995) and the later exclusion from s.4(4) of matters arising under ss.45D and 45E re-inforce our view that the legislature intended that only the matters expressly provided for under s.4(4) were excluded from the investment or conferral of jurisdiction under s.4(1) if the statutory preconditions set out in s.4(1) for the operation of the section were otherwise met.

94. Further, the specificity of the amendments to s.6 and of the definition of a "special federal matter" in relation to that section and the identical amendments to s.10 of the CVA and ss.86 and 86A of the TPA in respect of Part IVA matters, further evidence the continuing legislative intent to have overlapping but additional sources for jurisdiction and power under the two enactments.

95. The High Court recently considered the role of amending legislation in Commissioner of Stamps v. Telegraph Investments [1995] HCA 44; (1995) 70 ALJR 155 at 159. Both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature: see also the Acts Interpretation Act 1901 (Cth), s.15.

96. In Maybury v. Plowman [1913] HCA 43; (1913) 16 CLR 468 at 473-4 Barton ACJ explained the "generalia" principle as follows:

"The judgment under appeal turns upon the application of the

principle involved in the maxim generalia specialibus non

derogant to cases in which the legislature, after having dealt

specially with a particular matter, has afterwards passed an

enactment in general terms wide enough to repeal, or supersede,

or qualify the original provision...I wish to quote a passage

from the judgment of Wood V-C in Fitzgerald v. Clampneys 2J and H

at 54, quoted by Stirling J in Re Smith's Estate; Clements v.

Ward (1887) 35 Ch D 589 at 595. "The reason in all these cases is

clear. In passing the special Act, the legislature had their

attention directed to the special case which the Act was meant to

meet, and considered and provided for all the circumstances of

that special case; and, having so done, they are not to be

considered by a general enactment passed subsequently, and making

no mention of any such intention, to have intended to derogate

from that which, by their own special Act, they had thus

carefully supervised and regulated."

97. In our view the specificity with which the CVA has dealt with matters arising under the TPA including matters otherwise within the exclusive jurisdiction of the Federal Court makes it quite clear that each of the two enactments dealt "specially" with particular matters being, inter alia, cross-vesting in relation to matters arising under Parts IV and V of the TPA. For that reason alone the "generalia" principle has no application.

98. In any event the generalia principle is always subject to a contrary legislative intention. The Privy Council in Associated Minerals Consolidated Ltd. v. Wyong Shire Council (1975) AC 538 at 553 said:

"The problem is one of ascertaining the legislative

intention: is it to leave the earlier statute intact, with

autonomous application to its own subject matter; is it to

override the earlier statute in case of any inconsistency between

the two; is it to add an additional layer of legislation on top

of the pre-existing legislation, so that each may operate within

its respective field?"

99. The legislative intention in the present case is that each enactment is to operate according to its terms in its own, albeit overlapping, field.

100. Finally, the principle involves the court in considering the practical ways in which the legislation can operate together and whether, in that context, an irreconcilable conflict really arises: see Royal Automobile Club of Australia v. Sydney City Council (1992) 27 NSWLR 282 at 294 per Kirby P.

101. In the present case our view of the operation of the legislative scheme gives effect to it in a practical way, and leaves no conflict between the two enactments.

102. We should add that we have some doubt whether the maxim has any operation when two Acts are passed as part of a legislative scheme to deal with the one subject matter.

103. For similar reasons the argument based upon the second maxim, expressum facit cessare tacitum also fails as each act made specific provision for the conferral of additional and independent power of transfer.

104. In State Bank of NSW v. Commonwealth Savings Bank [1984] HCA 41; (1984) 154 CLR 579 at 583 Gibbs J declined to apply the maxim to the narrow power in question saying:

"On the contrary, I regard it as intended to confer an

additional and independent power of remitter".

105. The maxim was explained by Gavan Duffy CJ and Dixon J in Anthony Horden and Sons Ltd. v. The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 as follows:

"When the legislature explicitly gives a power by a

particular provision which prescribes the mode in which it shall

be exercised and the conditions and restrictions which must be

observed, it excludes the operation of general expressions in the

same instrument which might otherwise have been relied upon for

the same power."

106. The maxim is usually applied to reconcile or read down by implication a general power which is inconsistent with a specific power in the same instrument or enactment. It has little, if any, applicability to powers expressly conferred in separate enactments.

107. For those reasons we have concluded that there was no excess or want of jurisdiction or power in relation to the order made by Wilcox J transferring the proceeding to the Supreme Court.

(a) by reason of s.4(1) of the CVA the Supreme Court has

jurisdiction in the matter the subject of the proceedings before

it in the present case;

(b) Wilcox J had power under s.5(4) of the CVA to order that

the proceedings instituted by the Commission in the Federal

Court, be transferred to the Supreme Court.

109. In the circumstances it is strictly unnecessary to determine whether the writs of prohibition or certiorari sought in the present case should be refused in any event on discretionary grounds. However, as that matter was fully argued and it involves important issues of principle and we have reached a clear view about it which may bear upon the question of costs, it seems desirable that we also deal with that aspect of the matter.

110. The applicants submitted that the excess of jurisdiction on the part of Wilcox J was patent in that it appears on the face of the proceeding and accordingly a writ of prohibition issues as of right for so long as the order of Wilcox J has operative effect. It was then submitted that, as the jurisdiction which is continuing to be exercised by the Supreme Court, is founded upon that order, prohibition should issue. Finally, it was put that to the extent that it is also necessary to quash the order, a writ of certiorari should issue, although it was conceded that that writ was discretionary.

(a) Whether a writ of prohibition under s.75(v) of the

Constitution issues as of right when the error of law appears on

the face of the proceedings.

(b) Whether the Order of Wilcox J continues to have any

operative effect so that there is something left to prohibit.

(c) Whether there are discretionary or other reasons why

writs of prohibition or certiorari should be refused?

112. In our view a number of propositions can be stated:

113. (a) Prohibition will lie under s.75(v) of the Constitution to

the Federal Court because, notwithstanding that it is declared to

be a superior court of record, it is a court of limited

jurisdiction: see Re McJannet [1995] HCA 31; (1995) 132 ALR 198 at 207, 214-5.

(b) The writ may issue where the Federal Court exercises or

is purporting to exercise a jurisdiction it does not have. In

that context "jurisdiction" is a concept of constitutional rather

than of general law. This was pointed out by Toohey, McHugh and

Gummow JJ in Re McJannet at 214.

"Further, in respect of such a federal court, the power of the

parliament given by s.77 of the Constitution is to make laws

"(d)efining the jurisdiction" of the court "(w)ith respect to any

of the matters" which are "mentioned" in ss.75 and 76.

Accordingly, where the jurisdictional error said to attract a

remedy under s.75(v) is that of judges of a federal court,

"jurisdiction" is not simply a concept of the general law. It is

a constitutional term."

(c) Under the general law -

(i) where the absence of jurisdiction is patent in that it

appears on the face of the proceedings in an inferior court, the

court has issued prohibition as of right: see Mayor of London v.

Cox (1867) LR 2 HL at p 281; Farquarson v. Morgan (1894) 1 QB 552

at p 557;

(ii) where the absence of jurisdiction does not appear on the

face of the proceedings the decision to issue the writ is always

discretionary.

(d) Although earlier decisions of the High Court such as R.

v. Australian Stevedoring Industries Board; Ex parte Melbourne

Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 at 118-119 suggested

that a writ under s.75(v) of the Constitution issues as of right

when the applicant is directly affected by the course a tribunal

is pursuing in excess of its authority, to the applicant's

detriment, more recent decisions suggest that under s.75(v) there

always remains a residual discretion in an appropriate case to

refuse prohibition: see R. v. Ross-Jones; Ex parte Green (1984)

[1984] HCA 82; 156 CLR 185 at 193-4, 203, 204, 214, 215, 217-220, 225-6 and R.

v. Gray; Ex parte Marsh [1985] HCA 67; (1981) 157 CLR 351 at 375, 382, 384).

114. Prohibition under s.75(v) is the constitutional "means provided to keep federal courts within the bounds of their jurisdictional limits", (see R. v. Ross Jones at 208 (Wilson and Dawson JJ.)). Accordingly, in a clear case its refusal on discretionary grounds is likely to be exceptional, particularly if no other avenues for challenge are able to be called upon. No doubt it was with that in mind that in R. v. Ross Jones Gibbs CJ said (at 194):

"If, therefore, a clear case of want or excess of

jurisdiction has been made out, and the prosecutor is a party

aggrieved, the writ will issue almost as of right, although the

court retains its discretion to refuse relief if in all the

circumstances that seems the proper course."

115. In the same case at 218 Brennan J, after referring to the general law concerning prohibition issuing as of course for a patent defect, said:

"The s.75(v) jurisdiction of this Court over superior federal

courts is, in my opinion, discretionary in every case."

116. Deane J (who dissented on the question of whether prohibition should issue) said (at 225):

"The constitutional writ of prohibition is an important

safeguard against abuse of jurisdiction. Its grant lies within

discretion at least in a case where alternative remedies by way

of appeal are available. It is important that care be taken to

ensure that it is not itself abused by being made an instrument

of unnecessary and undesirable disruption and avoidance of the

ordinary and orderly procedures, including appellate procedures,

within the courts to which it may be directed."

117. We conclude that there is a residual discretion to refuse prohibition under s.75(v) in an appropriate case.

118. Prohibition will not issue if the order the subject of prohibition is exhausted in the sense that all possible operation of it is at an end: see R. v. Hibble; Ex parte The Broken Hill Proprietary Company Limited (1920) 28 CLR 456, 463 per Knox CJ and Gavan Duffy J. The test is not whether the Federal Court is functus officio or whether the order can no longer be enforced. In a case such as the present the test may be said to be whether the order made without jurisdiction

"remains in force so as to impose liabilities upon an

individual".

(R. v. Hibble at 463 per Knox CJ and Gavan Duffy J).

119. The applicants contended that the order made by Wilcox J founded, and continued to found, the jurisdiction being exercised by the Supreme Court and that the operation of the order would not be exhausted until the Supreme Court ceased to exercise jurisdiction in reliance upon it.

120. This submission involves, in our view, a misconception of the effect of s.5(4) of the CVA. We have explained earlier that s.5 did not operate to invest the Supreme Court with any jurisdiction; in the present case that was brought about by s.4(1) of the CVA. An order under s.5(4) involved no more than the exercise of the power conferred on the Federal Court to order the transfer of the proceeding to the Supreme Court. Thereafter the proceeding was wholly within the Supreme Court, the jurisdiction of which did not depend upon the order that transferred it there.

121. In our view, the order for transfer of the proceeding was exhausted in the relevant sense upon the transfer being completed and thereafter, to adopt what was said by Knox CJ and Gavan Duffy J in R v. Hibble at 463, the order no longer imposed any liabilities on any person. Nor could it do so in the future.

122. It may be that if, contrary to our view, jurisdiction was not conferred upon the Supreme Court by s.4(1) of the CVA the remedy, putting to one side the question whether as a matter of discretion any relief should be granted, would have been by way of application for an order against Hunter J under s.33(1)(b) of the Judiciary Act 1903. Section 33(1)(b) provides that the High Court may make orders or direct the issue of writs requiring any court to abstain from the exercise of any federal jurisdiction it does not possess.

123. If, contrary to the conclusions we have reached, Wilcox J had no jurisdiction to make the order transferring the proceeding to the Supreme Court, we would nevertheless refuse the application for a writ of prohibition on discretionary grounds. For the reasons that follow, we consider this to be one of those exceptional cases in which, even if an absence of jurisdiction is patent, prohibition should be refused.

124. We accept that the applicants have not waived their right to object to the absence of jurisdiction in the Supreme Court. To the contrary, they have pleaded and argued their objection to jurisdiction in the proceeding now awaiting judgment by Hunter J. The judgment will no doubt include reasons for His Honour's decision on the jurisdictional point. If, as Hunter J has already indicated he will, he rules against that objection, then his judgment may be the subject of an appeal to the Court of Appeal on all grounds including absence of jurisdiction.

125. In that regard it is difficult to envisage a clearer case of election - the election being to have the jurisdictional issue determined in and as part of the proceeding transferred to the Supreme Court of New South Wales.

126. The doctrine was described by Gaudron J in The Commonwealth v. Verwayen (1990) 170 CLR 394 at 484-5 as follows:

"It is clear that a party to litigation will be held to a

position previously taken (that position having been

intentionally taken with knowledge) if, as a result of that

earlier position, the relationship of the parties has changed.

The changed relationship, in the terms used in Phillips v. Martin

and approved in Wilson v. McIntosh, constitutes an "equit(y)

which (the other) has .... raised.

Given that the position deliberately adopted by one party has

brought about a change in the relationship of the litigants, a

doctrine which holds the parties to that relationship may be seen

as resting either on general policy considerations or on

principles analogous to those of estoppel. Such a doctrine, by

ensuring fair dealing in the conduct of litigation and by

promoting the finality of litigation, aids the efficient

administration of justice."

127. The conduct of the proceedings before the Referee, in the Supreme Court and the time and great expense incurred in that regard demonstrate the extent to which the relationship between the parties has changed in the sense discussed by Gaudron J.

128. The statement by the applicants that their participation in the Supreme Court proceedings is under objection and without prejudice to their right to contend that the Supreme Court has no jurisdiction in the matter, does not assist the applicants on the issue of election.

129. That is so for two reasons. First, we have accepted that no election has occurred in respect of the jurisdictional issue itself - the election relates to the manner, and proceedings in which, it is to be determined. Second, as was stated by Long Innes J in Haynes v. Hirst [1927] NSWStRp 66; (1927) 27 SR (NSW) 480 at 489.

"In plain language a man can only elect once, and when once

he has elected he is bound by his election and cannot again avail

himself of his former option, merely because he claimed in the

first instance to exercise his election without prejudice. A man,

having eaten his cake, does not still have it, even though he

professed to eat it without prejudice."

130. Further, we are not satisfied that other and more appropriate avenues to challenge the exercise of jurisdiction in the Supreme Court were or are not open to the applicants.

131. It is far from clear that an appeal under s.13(a) of the CVA was not available. If the order of Wilcox J was made without power it is difficult to describe the order as made "under" the CVA. Although the policy of s.13(a) is to prevent appeals from discretionary orders made within power we do not see that policy as mandating a prohibition of appeals from orders made without power. Such a prohibition would not be consistent with the cross-vesting scheme which is designed to ensure transfers only in appropriate cases. Such cases must, by definition, be restricted to cases where there is power to transfer.

132. In any event there still remains a right to appeal any adverse decision of Hunter J on jurisdiction. As we have pointed out the issue of jurisdiction arises under s.4(1) and not s.5(4) of the CVA. That is, and remains, a matter for adjudication by the Supreme Court at first instance and on appeal, if there is an appeal.

133. Despite earlier doubts it now appears that the availability of a right of appeal can afford a basis for refusing prohibition: see :R. v. Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 at 30 per Murphy J; R. v. Baker and Wilkie Ex parte Johnson (1980) 55 ALJR 191 at 192 and Re Comalco Aluminium (Bell Bay) Ltd.; Ex parte Australian Workers Union (1995) 70 ALJR 142 per Dawson J.

134. In Re Comalco Dawson J was of the view that an appropriate case for refusal arose where the applicant for prohibition was in fact also pursuing an alternative remedy. In that case the alternative remedy was an application for special leave to appeal to the High Court. In the present case the alternative remedy is the determination of the jurisdictional issue in the Supreme Court of New South Wales.

135. In our view in the present case the election on the part of the applicants to have the jurisdictional issue determined in the Supreme Court of New South Wales and the availability of other remedies, constitute powerful reasons for refusing the prohibition sought even if the grounds were otherwise made out.

136. Further, the applicants have been guilty of inexcusable and inordinate delay in making this application. No satisfactory explanation is proffered as to why the application could not have been made shortly after the order of Wilcox J was made in September 1994. That delay has resulted in the proceedings continuing in the Supreme Court to a concluded final hearing at great cost, both in time and money, for all concerned.

137. Earlier we referred to the observation by Deane J in R. v. Ross Jones (at 225) that it is important that a writ of prohibition, which is to safeguard against abuse of jurisdiction, is not itself abused by disrupting the ordinary and orderly procedures, including appellate procedures, of the courts sought to be prohibited.

138. In our view, the present case is a prime example of the kind of abuse of process Deane J was referring to.

139. It is for these reasons that we would, in any event, refuse the application for prohibition on discretionary grounds.

140. If he had concluded that Wilcox J had no jurisdiction to make the order transferring the proceedings, it would have been necessary for us to decide the additional question whether his order should be quashed. On any view certiorari is a discretionary remedy and we would have refused certiorari on discretionary grounds for the same reasons as we would have refused prohibition.

141. Having regard to the reasons given by us for refusing the application we propose to reserve liberty to the Commission to make such application as it may be advised on the question of costs.

142. We propose to determine that question on the written submissions of the parties. In that regard we direct that the Commission file and serve written submissions on the issue of costs within 7 days and the applicants file and serve any submissions in reply within 7 days of the receipt of the Commissions' submissions.