[1993] FCA 360
Barnes v Australian Telecommunications Corporation [1996] 2 Qd R 1QCA 1
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115[2013] NSWCA 392
Caboche v Ramsay (1993) 119 ALR 215[1993] FCA 920
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339[2016] HCA 2
Clarke v Chadburn [1985] 1 WLR 78[1991] FCA 566
Felton v Mulligan (1971) 124 CLR 367[1971] HCA 39
Fencott v Muller (1983) 152 CLR 570[1983] HCA 12
Fraser v NRMA Holdings Ltd (1995) 55 FCR 452[1995] FCA 9
In the Marriage of Smith (No 2) (1985) 10 Fam LR 283
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 9521 All ER 80
International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 7842 All ER 398
Jess & Jess [2021] FamCAFC 159
Kermani v Westpac Banking Corporation (2012) 36 VR 130[2008] FCAFC 172
Morris Finance Ltd v Brown (2016) 93 NSWLR 551[2016] NSWCA 343
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700[2001] FCA 237
NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584
[1994] FCA 1219
Page v McKensey [2004] NSWCA 437
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
[1981] HCA 7
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35
[1980] HCA 41
R v Commonwealth Court of Conciliation and Arbitration
Ex parte Barrett (1945) 70 CLR 141
[1945] HCA 50
Re Luck (2003) 78 ALJR 177
[1983] HCA 36
Tampion v Anderson (No 2) [1973] VR 829
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174
[2015] FCAFC 70
Warramunda Village Inc v Pryde (2002) 116 FCR 58
[2002] FCA 250
Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 30 ACSR 698
[1999] FCA 218
Wickstead v Browne (1992) 30 NSWLR 1
Judgment (5 paragraphs)
[1]
Background
The appellant commenced proceedings in the Consumer and Commercial Division of NCAT on 18 December 2017, seeking relief in respect of a retail lease between the third respondent Fobupu Pty Ltd as lessor and Amnol Holdings Pty Ltd as lessee, under which he guaranteed performance of the obligations of the lessee. On 6 March 2018, a senior member of NCAT made directions requiring the parties to provide to each other and to NCAT copies of all documents on which they proposed to rely for the hearing, which was appointed for 14 May 2018, and indicated that failure to provide documents in accordance with that direction could result in the party(s) not being permitted to rely on the documents without leave. On 21 March 2018, the appellant sought leave to appeal to the Appeal Panel of NCAT against those directions, and subsequently applied to vacate the hearing date. A Deputy President of the Tribunal made further directions on 17 April 2018 requiring the parties to serve, by 26 April 2018, a statement of the orders they sought and the evidence relied on, and adjourned the proceedings to 27 April 2018. On 18 April 2018, a principal member of NCAT, sitting as the Appeal Panel, refused leave to appeal from the directions made on 6 March 2018. The appellant was subsequently ordered to pay the costs of the opposing parties. [2]
By Summons filed in the Common Law Division on 11 September 2018, the appellant sought leave to appeal from the decision of the Appeal Panel. An Amended Summons was filed on 23 November 2018. On 26 April 2019, Harrison AsJ dismissed Notices of Motion filed by the appellant on 15 October 2018 and 20 December 2018, with costs. [3]
On 3 June 2019, the appellant filed a Notice of Motion, which was made returnable on 13 June 2019, by which he sought to challenge the orders and directions made by Harrison AsJ on 26 April 2019. The opposing parties did not appear on the return date, and it was not clear whether they had been served. The matter was adjourned for directions on 25 July 2019, when the opposing parties appeared but the appellant did not, and the proceedings were then further adjourned to 8 August 2019. The Registrar noted that a letter pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.6, would be sent to the appellant, informing him that his motion of 3 June 2019 would be dismissed if there was no appearance on 8 August 2019.
On that occasion, when the matter came before the Registrar, a medical certificate had been received from the appellant, who did not appear. An order was made, pursuant to UCPR, r 13.6, dismissing not merely the appellant's Notice of Motion, but the entirety of the proceedings. There were subsequent proceedings before registrars in which the question of whether or not the proceedings had been dismissed was disputed, but those events are superseded by the effect of the appellant's bankruptcy, which is described below.
As a result of the filing of certificates of assessment of the costs orders made by NCAT, deemed judgments of the Local Court against the appellant were entered for $1,591 (on 16 October 2019) and $26,551.98 (on 17 October 2019). On 9 April 2020, an application by the appellant to set aside those judgments was dismissed by a Magistrate. The appellant applied on 4 May 2021 for review of the assessment of costs, but on 6 May 2021 a sequestration order was made against the appellant in the Federal Circuit Court on the basis of the Local Court judgments. That sequestration order followed the service of a bankruptcy notice on 9 December 2019, an unsuccessful application to set it aside which was dismissed by Gleeson J (when her Honour was a judge of the Federal Court) on 25 June 2020, [4] the filing of a creditor's petition on 6 July 2020, the dismissal of an appeal against Gleeson J's decision by the Full Federal Court on 3 February 2021, [5] and the hearing of the creditor's petition on 25 June 2021. The appellant has appealed from the sequestration order, and for present purposes I assume that that appeal remains pending, as it was at the time of the judgment under appeal.
On 13 July 2021, the appellant filed a motion for review of the Registrar's orders of 8 August 2019 dismissing the proceedings, and sought the listing of the Summons for further directions. The opposing parties moved for orders staying the proceedings and dismissing the appellant's motion of 13 July 2021, in reliance on Bankruptcy Act, s 60, which relevantly provides as follows:
(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3) If the trustee does not make such an election within twenty-eight days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner, or a member of his or her family; or
(b) the death of his or her spouse or de facto partner or of a member of his or her family.
…
(5) In this section, action means any civil proceeding, whether at law or in equity.
On the opponents' stay motion, the judgment under appeal records that the appellant argued that the proceedings were not stayed, inter alia, because the Court had no jurisdiction to grant or declare a stay, since bankruptcy is within the exclusive jurisdiction of the Federal Court. [6] The primary judge held that the proceedings did not involve the exercise of jurisdiction "in bankruptcy", and that the Court had jurisdiction to determine the effect of Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), s 60, on the proceedings. Her Honour concluded: [7]
"The proceedings in this Court were commenced before the plaintiff became bankrupt. Thus, s 60(2) of the Act applies. By operation of 60(2), the proceedings were stayed automatically on and from the date of the sequestration order, being 6 May 2021, unless and until the trustees elected in writing to prosecute or discontinue them. The trustees were notified of the proceedings, at the latest, on 14 July 2021. By operation of s 60(3), the trustees are deemed to have abandoned them. Accordingly, the plaintiff does not have standing to prosecute the proceedings in his own name. Thus, he has no standing to prosecute his notices of motion filed on 13 July 2021 and 12 August 2021 respectively, which ought, accordingly, be dismissed. The defendants are entitled to the relief claimed in their notice of motion filed on 23 July 2021."
[2]
The jurisdictional issue
The first issue is whether, as the present appeal involves consideration of the effect of Bankruptcy Act, s 60, this Court is deprived of jurisdiction by Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("Cross-vesting Act"), s 7(5).
Section 7 of the Cross-vesting Act relevantly provides that an appeal from a judge of a State Supreme Court involving a matter arising under an Act specified in the Schedule can be brought only to the Full Federal Court:
(3) Where it appears that the only matters for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory are matters other than matters arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by, the Full Court of the Supreme Court of that State or Territory.
…
(5) Subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by:
(a) the Full Court of the Federal Court or of the Federal Circuit and Family Court of Australia (Division 1), as the case requires; or
(b) with special leave of the High Court, the High Court.
The Schedule refers to the Bankruptcy Act.
The appellant invoked the primary judge's conclusion that the case did not involve exercise of jurisdiction "in bankruptcy" so as to be a "special federal matter", as if this were dispositive of this question. However, contrary to the appellant's submission, in holding that the Court had jurisdiction to determine the effect of Bankruptcy Act, s 60, on the proceedings, her Honour was deciding a different question to that which arises under s 7(5). The question decided by her Honour was whether the proceedings involved the exercise of jurisdiction "in bankruptcy". That was relevant because the exercise of jurisdiction "in bankruptcy" is a "special federal matter" for the purposes of the Cross-vesting Act, by reason that:
1. Judiciary Act 1903 (Cth) ("Judiciary Act"), s 39B(1A)(c), provides that the Federal Court has original jurisdiction in any non-criminal matter arising under Commonwealth legislation;
2. The Bankruptcy Act is Commonwealth legislation;
3. By Bankruptcy Act, s 27(1), "the Federal Court and the Federal Circuit Court have concurrent jurisdiction in bankruptcy" - which means in "proceedings under or by virtue of" the Bankruptcy Act [8] - which is exclusive of the jurisdiction of all courts (other than the jurisdiction of the High Court under s 75 of the Commonwealth Constitution or the jurisdiction of the Family Court under ss 35 or 35A of the Bankruptcy Act);
4. Because it is exclusive, jurisdiction in bankruptcy is not invested in State courts by Judiciary Act, s 39(2); and
5. As such, a matter involving exercise of jurisdiction in bankruptcy is a matter that is within the original jurisdiction of the Federal Court under Judiciary Act, s 39B, and a matter in respect of which the Supreme Court of a State would not, apart from the Cross-vesting Act, have jurisdiction, within s 3(1)(e) of the Cross-vesting Act. [9]
[3]
The leave issue
The second potential objection to competency is that the judgment appealed from is interlocutory, so that an appeal lies only by leave.
Although it has been held that an order staying proceedings on the ground that they are an abuse of process because the point raised is res judicata is a final judgment, [18] many orders which have apparently final effect but do not involve a judgment on the merits are, for present purposes, regarded as interlocutory, including an order striking out a claim on the ground that it discloses no reasonable cause of action and staying or dismissing further proceedings, [19] an order dismissing proceedings for want of prosecution, [20] and an order summarily dismissing proceedings under UCPR, r 13.4, and its equivalents. [21]
On those authorities, were the orders under appeal orders staying the proceedings, I would not have hesitated to hold that they were, for present purposes, interlocutory. However, some cause for reservation was occasioned by the circumstance that they were expressed - and, in the circumstances that they simply recognised the automatic effect of Bankruptcy Act, s 60, rather than involving an exercise of the Court's own power to stay proceedings, rightly so - not as orders but as declarations, and it has often been said that there is no such thing as an interlocutory declaration. [22]
A number of cases - many from the Full Court of the Federal Court - now recognise that there are circumstances in which a declaratory judgment may not be a final judgment for the purposes of appellate provisions such as Supreme Court Act 1970 (NSW) ("SCA"), s 101(2)(e). [23] The issues were discussed by Finkelstein J in Warramunda, in which his Honour expressed the view that a declaration can only be final and conclusive, but acknowledged that he was bound by overwhelming higher authority to the contrary. [24] While I agree that there cannot be an interlocutory declaration in the sense of one expressed to be "until further order", that is not conclusive of the question whether the order is, for the purposes of SCA s 101(2)(e), "an interlocutory judgment or order". In Jess & Jess, the Full Court of the Family Court held that leave to appeal was required from a declaratory order which was not a conclusive declaration as to the respective rights and liabilities of the parties but more akin to a finding of fact. [25] In the context of a provision such as s 101(2)(e), the test is whether the order is a conclusive declaration of the respective rights and liabilities of the parties.
[4]
Conclusion
For the foregoing reasons, the appeal is not incompetent for want of jurisdiction, but it is incompetent as it requires leave, which has neither been sought nor granted. As I indicated during the course of the hearing, if I reached the conclusion that leave was required, the appropriate order would involve allowing the appellant an opportunity to file an application for leave to appeal. Such an application would now be out of time, so that an extension of time would also be required.
The Court therefore orders that:
1. Unless by 3 December 2021 the appellant has filed an application for leave to appeal, including for an extension of time in which to do so, the appeal be dismissed with costs.
2. The proceedings are adjourned to 6 December 2021 before the Registrar for further directions.
[5]
Endnotes
Singh v Khan [2021] NSWSC 1093 at [57] (Adamson J) ("Primary Judgment").
See Singh v Fobupu Pty Ltd [2018] NSWCATAP 127.
See Singh v Khan [2019] NSWSC 485.
See Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886.
See Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14. An application for special leave to the High Court was refused on 12 August 2021: Singh v Fobupu Pty Ltd [2021] HCASL 142.
Primary Judgment at [43(1)] (Adamson J).
Primary Judgment at [55] (Adamson J).
Bankruptcy Act, s 5 - "bankruptcy" (emphasis added).
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 187 [48] (Allsop CJ, Katzmann and Gleeson JJ); [2015] FCAFC 70; Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380 at 421 [172]-[173] (Perram J); [2008] FCAFC 172 ("Meriton").
Meriton at 421 [172] (Perram J), cited with approval in Morris Finance Ltd v Brown (2016) 93 NSWLR 551 at 558 [32] (Payne JA; Basten JA agreeing); [2016] NSWCA 343 ("Morris Finance").
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115 at 118 [5] (Meagher JA); [2013] NSWCA 392; Morris Finance at 556 [23] (Payne JA; Basten JA agreeing).
See In the Marriage of Smith (No 2) (1985) 10 Fam LR 283 at 288-289 (Evatt CJ); Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 278-283 (Gibbs CJ), 288-293 (Mason, Brennan and Deane JJ), 302-305 (Wilson and Dawson JJ); [1983] HCA 36; Fencott v Muller (1983) 152 CLR 570 at 591-593 (Gibbs CJ), 602-609 (Mason, Murphy, Brennan and Deane JJ), 612-613 (Wilson J), 624-630 (Dawson J); [1983] HCA 12; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473-476 (Barwick CJ), 491-492 (Gibbs J), 506-514 (Mason J; Stephen J agreeing), 530-536 (Aickin J), 544-545 (Wilson J); [1981] HCA 7.
Felton v Mulligan (1971) 124 CLR 367 at 375 (Barwick CJ); [1971] HCA 39; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ); [1945] HCA 50 ("Barrett").
Barrett at 154 (Latham CJ).
(2016) 259 CLR 339 at 351-352 [29] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 2.
ation (2012) 36 VR 130; [2012] VSCA 42
Leybourne v Habkouk [2012] NSWCA 212
Little v Victoria [1998] 4 VR 596
Macatangay v New South Wales (No 2) [2009] NSWCA 272
McGinn v Cranbrook School [2016] NSWCA 226
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172
Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700; [2001] FCA 237
NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584; [1994] FCA 1219
Page v McKensey [2004] NSWCA 437
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35; [1980] HCA 41
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50
Re Luck (2003) 78 ALJR 177; [2003] HCA 70
Singh v Fobupu Pty Ltd [2018] NSWCATAP 127
Singh v Fobupu Pty Ltd [2021] HCASL 142
Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886
Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14
Singh v Khan [2019] NSWSC 485
Singh v Khan [2021] NSWSC 1093
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36
Tampion v Anderson (No 2) [1973] VR 829
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70
Warramunda Village Inc v Pryde (2002) 116 FCR 58; [2002] FCA 250
Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 30 ACSR 698; [1999] FCA 218
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272
Texts Cited: Commonwealth House of Representatives, Parliamentary Debates (Hansard), 22 October 1986
Explanatory Memorandum, Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth)
Category: Procedural rulings
Parties: Gurjit Singh (Appellant)
Ghulam Akbar Khan (First Respondent)
Samina Khan (Second Respondent)
Fobupu Pty Ltd (Third Respondent)
Secretary, Department of Communities and Justice (Fourth Respondent)
Anthony Dicembre (Fifth Respondent)
Ryan Brown (Sixth Respondent)
Karen Jones (Seventh Respondent)
Representation: Counsel:
Self-represented (Appellant)
R Brown (First, Second, Third, Fifth, and Sixth Respondents)
C Frommer (sol) (Fourth Respondent)
Solicitors:
McGrath Dicembre & Company (First, Second, Third, Fifth, and Sixth Respondents)
Crown Solicitors' Office (Fourth Respondent)
File Number(s): 2021/249764
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Common Law
Citation: [2021] NSWSC 1093
Date of Decision: 30 August 2021
Before: Adamson J
File Number(s): 2018/278850
However, there is a distinction between the concept of jurisdiction "in bankruptcy" and "a matter arising under" the Bankruptcy Act for the purposes of Cross-vesting Act, s 7(5). Not all "matters arising under" the Bankruptcy Act are "proceedings under or by virtue of" (emphasis added) the Bankruptcy Act so as to involve exercise of jurisdiction "in bankruptcy". [10] The Federal Court has exclusive jurisdiction "in bankruptcy" (which is concerned with applications authorised by the Bankruptcy Act, such as creditors' petitions, applications for annulment, and applications to recover preferences), but the State courts have concurrent jurisdiction (pursuant to Judiciary Act, s 39(2)), to determine matters arising under the Bankruptcy Act other than those falling within the Federal Court's exclusive jurisdiction. The definition of a "special federal matter" does not catch matters arising under Commonwealth legislation in respect of which jurisdiction is not exclusively conferred on a federal court, because jurisdiction in such matters is invested in State courts by Judiciary Act, s 39(2), and they are therefore matters in respect of which the Supreme Court of a State would have jurisdiction apart from the Cross-vesting Act.
Thus her Honour's decision that the proceedings did not involve jurisdiction "in bankruptcy" is not determinative of whether, for the purposes of s 7(5) of the Cross-vesting Act, a matter for determination in the appeal is a matter arising under the Bankruptcy Act.
The concept of a "matter arising under an Act" in s 7(5) of the Cross-vesting Act is the same as that of a "matter … arising under any laws made by the Parliament" in s 76(ii) of the Commonwealth Constitution. [11] In that context, it is established that a "matter" connotes an entire justiciable controversy. [12] While there is a recognised distinction between a matter that arises under a Commonwealth statute and one which merely involves the interpretation of a Commonwealth statute, [13] in CGU Insurance Ltd v Blakeley, the High Court elaborated on the classical statement of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett that "a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law", [14] as follows (footnotes omitted): [15]
"It is a particular application of that general statement to say that a matter
will arise under a federal law if it involves a claim at common law or equity or
under a law of a State where the claim is 'in respect of a right or property which is the creation of federal law'. If the source of a defence to a claim at common law or equity or under a law of a State is a law of the Commonwealth, then on that account also the matter may be said to arise under federal law. The existence of such a claim in a proceeding will meet the subject matter condition necessary to enliven the federal jurisdiction invested in a court of a State pursuant to s 77(iii) of the Constitution, read with s 76(ii) …"
Thus a matter may be said to arise under a Commonwealth statute if that statute provides a defence to the claim. While I have considered whether a stay can be distinguished in this respect from a defence, I have concluded that it cannot. It must follow that if a Commonwealth statute is deployed, in answer to a claim, to contend that the proceeding is stayed, the matter arises under federal law. It must further follow that, although when these proceedings were instituted, they had no federal element, once the appellant became a bankrupt and Bankruptcy Act, s 60, was enlivened, it became a matter arising under the Bankruptcy Act.
However, that the appeal involves a matter arising under the Bankruptcy Act is not in my opinion conclusive of itself of the question whether s 7(5) of the Cross-vesting Act is engaged so as to deprive this Court of jurisdiction in the appeal, though on a literal construction, without regard to context, it might at first sight appear so. Section 7 is to be construed in the context of the Act as a whole, which is concerned with the cross-vesting of jurisdiction. Its long title is "An Act relating to the cross‑vesting of certain jurisdiction". The preamble is as follows:
WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable, so far as is constitutionally possible:
(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 Federal Circuit and Family Court of Australia (Division 1) 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.
The Explanatory Memorandum for the Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth) contains the following in respect of s 7 (emphasis added): [16]
"Clause 7: Institution and hearing of appeals
20. But for clause 7, the full cross-vesting of federal and State jurisdiction between the relevant courts at the appellate levels as well as at first instance could, for example, result in an appeal being taken from a single judge of a State Supreme Court to the Full Federal Court in matters that, apart from the cross-vesting legislation, would have been entirely outside the jurisdiction of the Federal Court. Similarly, the full cross-vesting could result in appeals being taken from a single judge of the Federal Court or Family Court to the Full Supreme Court of a State. Cross-vesting could also give rise to appeals from the federal Court to the Full Family Court, or from a State Supreme Court to the Full Family Court of a State. Clause 7 is designed to prevent the cross-vesting from giving rise to any such appeals except where a matter in an appeal from a single judge of a State Supreme Court is a matter arising under a Commonwealth Act specified in the Schedule to the Bill. In such a case, the whole appeal will lie only to the Full Federal Court. The scheduled Acts are Acts, such as the Bankruptcy Act 1966 and the Commonwealth Electoral Act 1918, under which the Full Federal Court now has exclusive appellate jurisdiction."
The Second Reading Speech of the Attorney-General Mr Lionel Bowen included the following (emphasis added): [17]
"The special role of the Federal Court is also recognised in relation to appeal matters which presently lie within the exclusive appellate jurisdiction of the Federal Court. The Schedule to the Bill lists certain Acts such as the Bankruptcy Act 1966 and the Commonwealth Electoral Act 1919. Appeals in matters under the listed Acts will remain within the exclusive appellate jurisdiction of the Full Federal Court."
In my judgment, the purpose of s 7 is to make provision in respect of the appropriate appellate court for appeals from a judgment of a first instance court which has been exercising cross-vested jurisdiction - not where the first instance court is, otherwise than in the exercise of cross-vested jurisdiction, considering the effect of a law of the Commonwealth. This is clear from the context of s 7 in the Act in which it is contained, and made all the plainer by the Explanatory Memorandum and the Second Reading Speech, which clarify that s 7 was intended to prevent cross-vesting from undercutting the exclusive character of the Full Federal Court's appellate jurisdiction under the scheduled Acts. It was not intended to require that an appeal from a State Supreme Court exercising jurisdiction invested by Judiciary Act, s 39(2), independently of cross-vesting, could be brought only to the Full Federal Court.
In this case, the primary judge was not exercising cross-vested jurisdiction. Her Honour was not exercising the ordinary jurisdiction of any court other than that of the Supreme Court of New South Wales. Her Honour was not exercising any power granted by the Bankruptcy Act. If any federal jurisdiction was involved, it was invested by Judiciary Act, s 39(2), independently of cross-vesting. As in my view her Honour was not exercising cross-vested jurisdiction at all, s 7(5) is not engaged. I therefore decline to hold that the appeal is incompetent for want of jurisdiction.
The orders under appeal, though expressed as declarations, do not declare conclusively the rights and liabilities of the parties in such a manner such as to qualify them as final orders. They are, for the purposes of SCA, s 101(2)(e), interlocutory in character, so that leave to appeal is required.
Having regard to that conclusion, I do not need to consider the submission raised by the respondents that leave might also be required on the basis that it was not apparent that in excess of $100,000 is presently in issue. [26]
Explanatory Memorandum, Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth) at 11 [20].
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 22 October 1986 at 2556.
See Leybourne v Habkouk [2012] NSWCA 212 at [13]-[16] (McColl and Meagher JJA); Kermani v Westpac Banking Corporation (2012) 36 VR 130 at 151-152 [89]-[90] (Robson AJA; Neave JA and Harper JA agreeing); [2012] VSCA 42; Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 at 37-38 (Gibbs J; Mason J and Murphy J agreeing); [1980] HCA 41.
AB v New South Wales [2014] NSWCA 243 at [8]-[17] (Leeming JA); Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [10]-[13] (Allsop P, Tobias JA and Handley AJA) ("Macatangay"); Re Luck (2003) 78 ALJR 177 at 178-179 [4]-[10] (McHugh ACJ, Gummow and Heydon JJ); [2003] HCA 70; Little v Victoria [1998] 4 VR 596 at 597-602 (Callaway JA; Buchanan JA agreeing); Tampion v Anderson (No 2) [1973] VR 829 at 830-832 (Smith J; Pape J and Crockett J agreeing).
See National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700 at 702-703 [4]-[11] (Cooper, Whitlam and Tamberlin JJ); [2001] FCA 237.
McGinn v Cranbrook School [2016] NSWCA 226 at [9], [20], [40] (Gleeson JA; Beazley P and Simpson JA agreeing); Macatangay at [11] (Allsop P, Tobias JA and Handley AJA); Page v McKensey [2004] NSWCA 437 at [30] (Mason P; Hodgson JA and Pearlman AJA agreeing); Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 30 ACSR 698 at 704 [22] (Whitlam J); [1999] FCA 218; Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA; Kirby P agreeing); [1992] NSWCA 272.
See Warramunda Village Inc v Pryde (2002) 116 FCR 58 at 77 [68] (Finkelstein J); [2002] FCA 250 ("Warramunda"); Clarke v Chadburn [1985] 1 WLR 78 at 81 (Megarry VC); 1 All ER 211; Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1014 (Lord Diplock), 1027 (Lord Scarman); 1 All ER 80; International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784 at 789-790 (Upjohn LJ; Diplock LJ agreeing); 2 All ER 398.
Construction, Forestry, Mining & Energy Union v Employment Advocate [2001] FCA 1442 at [9] (Lee, Finn and Merkel JJ); Barnes v Australian Telecommunications Corporation [1996] 2 Qd R 1 at 2-4 (Pincus JA; Shepherdson J agreeing); QCA 1; Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 457 (Black CJ, von Doussa and Cooper JJ); [1995] FCA 9; NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584 at 593-594 (Beaumont, Gummow and Carr JJ); [1994] FCA 1219; Caboche v Ramsay (1993) 119 ALR 215 at 226 (Gummow J; Ryan J and Lee J agreeing); [1993] FCA 920; Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 454 (Lockhart and Gummow JJ; Spender J agreeing); [1993] FCA 360; Fisher & Paykel Health Care Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 242 (Black CJ, Lockhart and Gummow JJ); [1991] FCA 566.
Warramunda at 77-78 [69]-[70] (Finkelstein J).
[2021] FamCAFC 159 at [10]-[24] (Alstergren CJ, Strickland and Kent JJ).
See SCA, s 101(2)(r).
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Decision last updated: 19 November 2021