mixed. Applications in Re Wakim dismissed with costs (jurisdiction upheld on accrued basis); in Re Brown, time extended for certiorari, order absolute for certiorari to quash examination orders and...
Key principles
Chapter III of the Constitution provides an exhaustive statement of the judicial power of the Commonwealth and the matters in respect of which federal courts may exercise...
A State Parliament cannot vest State judicial power in a federal court created under s 71 of the Constitution, as this would be inconsistent with the negative implications...
The Commonwealth Parliament has no power under s 51(xxxix) or any incidental power arising from s 71 to consent to the vesting of State jurisdiction in a federal court, as such...
Co-operative federalism cannot supply constitutional power where none exists, and the cross-vesting legislation cannot be supported as an exercise of co-operative power: see...
Issues before the court
Whether the cross-vesting legislation validly allows State Parliaments to vest State jurisdiction in federal courts with the consent of the...
Whether the Federal Court had jurisdiction in the specific proceedings, including under accrued jurisdiction or the Corporations Law of the ACT.
Plain English Summary
The High Court decided that laws allowing federal courts like the Federal Court to hear cases under State law (the cross-vesting scheme) were unconstitutional. The Constitution's Chapter III sets strict limits on what federal courts can hear — basically only federal matters — and States cannot add their own cases to that list, even if the Commonwealth agrees. This overturned earlier views and meant some ongoing cases had to be looked at again. However, in the ACT the Corporations Law worked differently because of the territories power, and some cases stayed in the Federal Court because of 'accrued jurisdiction' where State and federal claims were closely linked.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
3,108 words · generated 24/04/2026
What happened
The proceedings before the High Court in Re Wakim; Ex parte McNally [1999] HCA 27 (and the related matters heard concurrently, including , and ) arose from a legislative scheme enacted by the Commonwealth and all States in 1987 and 1989-1990. The (Cth) and its State counterparts, together with parallel provisions in the (Cth) and State , established a system intended to allow federal, State and Territory courts to exercise each other's jurisdiction in civil matters so as to reduce inconvenience and expense caused by jurisdictional boundaries ([1], [83]-[93]).
Cited legislation
No linked legislation citations have been extracted yet.
Re Wakim; Ex parte Darvall
Re Brown; Ex parte Amann
Spinks v Prentice
Jurisdiction of Courts (Cross-vesting) Act 1987
Corporations Act 1989
Corporations Acts
In Re Wakim, George Wakim, a judgment creditor of a bankrupt (Tedros Nader), commenced proceedings in the Federal Court against the Official Trustee in Bankruptcy under ss 176, 178 and 179 of the Bankruptcy Act 1966 (Cth). He separately sued the solicitors (McNally) and counsel (Darvall) retained by the Trustee in negligence, relying on s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and s 9(2) of the Commonwealth Act to confer jurisdiction ([129]-[134]). The solicitors and Darvall challenged the Federal Court's jurisdiction.
In Re Brown, the Federal Court had ordered the winding up of Amann Aviation Pty Ltd (in liq) under the Corporations Law of New South Wales in 1992. Examination orders were later made under s 596A of that Law. Directors Amann and Gould sought to quash those orders and the winding-up order itself on the basis that the Federal Court lacked jurisdiction, citing the invalidity of the cross-vesting provisions ([96], [151]-[152]). Gould had been a party to earlier litigation (Gould v Brown (1998) 193 CLR 346) in which the Court was evenly divided on validity.
In Spinks v Prentice, examination summonses were issued under ss 596B and 597(9) of the Corporations Law of the Australian Capital Territory in respect of a company wound up by the Federal Court. The examinees challenged the jurisdiction, arguing the relevant provisions of the Corporations Act 1989 (Cth) were invalid ([169]).
The Full Court of the Federal Court had upheld the legislation in BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451. An appeal to the High Court in Gould v Brown resulted in an even division, so the Full Court's orders stood under s 23(2)(a) of the Judiciary Act 1903 (Cth) ([95], [100]). The present matters directly challenged that conclusion. The Commonwealth, all States, the ACT and the Northern Territory intervened to support validity.
The Court (by majority: Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting on the main issue) held the cross-vesting legislation invalid insofar as it purported to vest State judicial power in federal courts. Orders were made dismissing most applications but granting certiorari and prohibition in Re Brown to quash examination orders while leaving the winding-up order on foot for discretionary reasons. In Spinks v Prentice the appeal was dismissed because jurisdiction for ACT Corporations Law matters was supported by s 122 of the Constitution ([172]-[175]).
Why the court decided this way
The majority (principally the joint reasons of Gummow and Hayne JJ, with whom Gleeson CJ, Gaudron and McHugh JJ agreed in substance) began from the text and structure of Chapter III. Section 71 vests the judicial power of the Commonwealth in the High Court, federal courts created by Parliament, and State courts invested with federal jurisdiction. Sections 75 and 76 identify the matters in which original jurisdiction may be conferred, and s 77 empowers Parliament to define the jurisdiction of federal courts with respect to those matters, to make it exclusive, or to invest State courts with federal jurisdiction ([5], [77]).
The Court held that these provisions are exhaustive. Drawing on In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 (applied at [10], [52]), the majority reasoned that the express statement of matters in ss 75 and 76 operates as "a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction" ([10]). This delimitation carries negative implications: neither the Commonwealth nor the States may confer jurisdiction outside those limits ([57]-[59]).
The cross-vesting legislation was said to rest on the premise that a State could vest its judicial power in a federal court and that the Commonwealth could consent by legislation (s 9 of the 1987 Act and s 56 of the Corporations Act). The majority rejected both steps. First, a State Parliament lacks power to vest State jurisdiction in a federal court because Chapter III impliedly forbids it; the express power in s 77(iii) to invest State courts with federal jurisdiction highlights the absence of any reciprocal power ([56], [58]). To hold otherwise would render the delimitation in ss 75-77 pointless ([59]).
Second, the Commonwealth has no legislative power to consent. The incidental power in s 51(xxxix) (matters incidental to the execution of powers vested in the Federal Judicature) does not extend to a law that supplements the judicial power of the Commonwealth with State judicial power; it is not "in aid of the execution of the principal power" but a "substantial addition" that circumvents constitutional limits ([23]-[24], [118]-[122]). R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 was distinguished: there both polities had power to confer authority on the tribunal; here the Commonwealth lacked power to consent to what Chapter III forbade ([21], [112]-[113]).
Co-operative federalism, while a "positive objective" of the Constitution ([19]), cannot supply power where none exists. The Parliaments cannot, by agreement, amend the Constitution ([2]). The preambular statements of convenience and the long operation of the scheme were irrelevant to validity; constitutional character is determined by operation and effect, not purpose or longevity ([102]-[103]).
In Re Wakim, the Court held that, although the cross-vesting basis failed, the proceedings against the solicitors and Darvall fell within the Federal Court's accrued jurisdiction. The three proceedings shared a common substratum of facts arising from the compromise of claims against Mrs Nader; the damage claimed was identical and recovery against one defendant would reduce the amount recoverable from others. This satisfied the test in Fencott v Muller (1983) 152 CLR 570 at 608 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512: it was one justiciable controversy ([136]-[147]).
In Re Brown, the lack of jurisdiction to make the winding-up and examination orders was clear once the legislation was invalid. Certiorari issued to quash the examination orders; prohibition prevented further steps in the winding up. The winding-up order itself was not quashed because more than six years had passed, the liquidator had incurred expenses, and third-party rights might be affected ([164]-[165]). Discretionary factors, including the passage of time and potential prejudice, weighed against quashing ([79]-[81], [162]-[167]).
In Spinks v Prentice, jurisdiction rested on s 51(1) of the Corporations Act 1989 (Cth) conferring jurisdiction in matters arising under the Corporations Law of the ACT. That Law was supported by s 122; the power in s 122, read with ss 76(ii) and 77(i), validly conferred jurisdiction on the Federal Court ([172]-[175]; see also Northern Territory v GPAO (1999) 196 CLR 553). The examination powers were incidental to the winding-up jurisdiction and did not impermissibly confer non-judicial power on the facts of the case ([176]).
Kirby J dissented on the main issue, holding that nothing in Chapter III forbade State vesting of jurisdiction in federal courts with Commonwealth consent, and that the incidental power and implied nationhood power supported the Commonwealth's consent ([187]-[225]). Callinan J agreed with the majority that the legislation was invalid but would have granted broader relief in Re Brown.
Before and after state of the law
Before Re Wakim, the cross-vesting scheme had operated for more than a decade. The Full Federal Court in BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 upheld its validity. In Gould v Brown (1998) 193 CLR 346 the High Court was evenly divided (Brennan CJ, Toohey and Kirby JJ favouring validity; Gaudron, McHugh and Gummow JJ against). Under s 23(2)(a) of the Judiciary Act, the appeal was dismissed and the Full Court's orders stood, but the decision created no binding precedent in the High Court ([31], [100]-[101]).
The pre-1987 law required litigants to navigate complex jurisdictional boundaries. Federal courts could not hear purely State claims unless they fell within accrued jurisdiction (Philip Morris (1981) 148 CLR 457; Fencott (1983) 152 CLR 570; Stack (1983) 154 CLR 261). State Supreme Courts could be invested with federal jurisdiction under s 77(iii), but the reverse was untested. The scheme was enacted to allow one court to resolve all aspects of a controversy, avoiding multiplicity and "arid jurisdictional disputes" (preamble to the 1987 Acts, noted at [145]).
After Re Wakim, the cross-vesting legislation is invalid to the extent that it vests State judicial power in federal courts. State matters must now be commenced in State courts unless they fall within federal jurisdiction, including accrued jurisdiction. The decision reaffirmed the exhaustive character of Chapter III (In re Judiciary and Navigation Acts applied; Boilermakers applied). It limited Duncan to cases where each polity has independent power to confer authority.
However, the Corporations Law of the ACT remains supported by s 122; federal courts may exercise jurisdiction in matters arising under it (Northern Territory v GPAO confirmed at [172]). Accrued jurisdiction continues to allow federal courts to determine non-federal claims that form part of the same justiciable controversy (Philip Morris, Fencott and Stack applied at [135]-[147]). The decision prompted legislative responses, including the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) and State references of power under s 51(xxxvii) to support a revised corporations scheme.
The law on winding-up and examinations under the Corporations Law was clarified: without valid cross-vesting, a federal court cannot make orders under State Corporations Law unless the matter is otherwise within federal jurisdiction. Discretionary relief (certiorari and prohibition) remains available but is subject to considerations of delay and third-party prejudice ([164]-[165]).
Key passages with plain-English translation
Paragraph [10] (Gummow and Hayne JJ, quoting In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265): "because Ch III only empowered the Parliament to confer original jurisdiction on the High Court in relation to 'matters' of the kind specified in ss 75 and 76, and because Ch III operates 'as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction'".
Plain-English translation: The Constitution does not let Parliament give federal courts whatever cases it likes. It draws a strict boundary around the types of cases federal courts can hear. Anything outside that boundary is excluded. This is not a suggestion; it is a hard limit.
Paragraph [57] (Gummow and Hayne JJ, quoting Boilermakers (1956) 94 CLR 254 at 270): "The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation. In Ch III we have a notable but very evident example."
Plain-English translation: When the Constitution says federal courts can only do certain things, that automatically means they cannot do the opposite. Chapter III is a clear example of this rule. States cannot simply hand over their cases to federal courts.
Paragraph [118] (Gummow and Hayne JJ): "The laws now in question cannot be described as being laws with respect to matters incidental to the execution of a power vested by the Constitution in the federal judicature... Conferring State jurisdiction on federal courts may make the exercise of State jurisdiction more effective. But it does nothing for the effective exercise or execution of federal jurisdiction."
Plain-English translation: The Commonwealth's power to make laws about its own courts does not let it agree to let those courts hear purely State cases. That would not help the federal system work better; it would just add extra work that the Constitution never intended.
Paragraph [135] (Gummow and Hayne JJ, quoting Fencott v Muller (1983) 152 CLR 570 at 608): "in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter."
Plain-English translation: Deciding whether a federal court can hear a related State claim is not a mechanical test. Judges must look at the facts, the parties and the claims and make a practical, common-sense decision about whether everything forms one single dispute.
Paragraph [164] (Gummow and Hayne JJ): "It is more than six years since the winding up order was made. During that time, Mr Brown has acted as liquidator and has incurred expenses in the winding up, including, presumably, costs and expenses associated with this litigation. Of more significance, however, is the consideration that third parties may well have acquired rights that would be affected if the winding up order were now to be quashed."
Plain-English translation: Even though the winding-up order was made without jurisdiction, it has been in place for years. Undoing it now could hurt innocent people who have relied on it. So the Court will stop any further action under the order but will not wipe the order off the books.
What fact patterns trigger this precedent
The decision is triggered whenever a federal court is asked to exercise jurisdiction that is said to come from a State law under the cross-vesting scheme. Classic triggers include:
A plaintiff bringing both federal (e.g. Bankruptcy Act or Trade Practices Act) and purely State (e.g. contract or tort) claims in the Federal Court and relying on cross-vesting to support the State claims ([129]-[134]).
Applications for examination or winding-up orders under State Corporations Law in the Federal Court where the only basis is cross-vesting ([151]-[153]).
Challenges to jurisdiction by defendants in Federal Court proceedings where the claim arises under State law and accrued jurisdiction is not available because the claims are "separate and distinct" or lack a "common substratum of facts" ([140]-[142]).
Any attempt to use the 1987 cross-vesting Acts or the Corporations Law cross-vesting provisions to transfer or commence a State matter in a federal court.
The precedent does not apply to matters arising under the Corporations Law of the ACT (supported by s 122) or to claims that genuinely fall within accrued federal jurisdiction. It also has no application to the investment of federal jurisdiction in State courts under s 77(iii), which remains valid.
The fact pattern must involve an attempt to vest State judicial power. If the matter is truly federal or arises under a Commonwealth law (including laws supported by s 122), the decision has no bite.
How later courts have treated it
Re Wakim has been consistently followed as establishing that Chapter III is an exhaustive statement of federal judicial power. In Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 650-651, the Court applied it to hold that the Federal Court could not exercise jurisdiction under the cross-vesting scheme in a transferred proceeding. The Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) and State references of power under s 51(xxxvii) were enacted to overcome the invalidity for corporations matters; those provisions have been upheld (ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559).
Later decisions have confined Re Wakim to its constitutional holding while preserving accrued jurisdiction. In Re McJannet; Ex parte Minister for Employment, Workplace Relations and Small Business (2000) 201 CLR 223, the Court reiterated that State jurisdiction cannot be vested in federal courts. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 422, the Court noted that the invalidity of cross-vesting had led to greater reliance on transfer of proceedings under the Jurisdiction of Courts (Cross-vesting) Acts where constitutionally possible (i.e. between State courts).
The decision has been cited with approval in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 (on the distinct character of federal and State judicial power) and K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 521. No court has cast doubt on the core holding. Lower courts have applied the accrued-jurisdiction test cautiously, emphasising the need for a single controversy (Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (post-Wakim analysis); MZXOT v Minister for Immigration (2008) 233 CLR 601).
The ACT corporations jurisdiction upheld in Spinks v Prentice has been followed in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163. The discretionary approach to quashing invalid administrative acts (as in Re Brown) has been applied in Minister for Immigration v Bhardwaj (2002) 209 CLR 597.
Still-open questions
Several questions remain unresolved. First, the precise boundaries of accrued jurisdiction continue to generate dispute. The "impression and practical judgment" test (Fencott at 608, applied in Re Wakim at [136]) leaves room for argument about when claims are "completely disparate" ([140]). Later courts have not settled whether a federal claim against every defendant is required or whether third-party claims can always be heard.
Second, the interaction between Re Wakim and s 51(xxxvii) references of power is not fully explored. The 2001 corporations scheme relies on State reference; whether that can validly expand federal court jurisdiction in ways that mimic cross-vesting remains untested at the highest level.
Third, the decision leaves open the position of Territory jurisdiction. Spinks v Prentice upheld ACT Corporations Law jurisdiction under s 122, but the power of a Territory legislature to vest Territory jurisdiction in federal courts with Commonwealth consent was expressly reserved ([233]). That question has not been authoritatively answered.
Fourth, the precise scope of the implied nationhood power (discussed by Kirby J in dissent at [221]-[224]) and its application to the Judicature remains unsettled. The majority did not address it because it was not argued ([125]).
Fifth, the extent to which discretionary factors will prevent quashing of long-standing invalid orders (as in Re Brown at [164]-[165]) is fact-specific. No bright-line rule has emerged for when prejudice to third parties or the passage of time will bar relief.
Finally, the decision has not been revisited by a later High Court. While its core holding is entrenched, the precise limits of co-operative federalism in the judicial sphere (distinguished from Duncan) may require further elucidation if new legislative schemes are devised.
Judgment (438 paragraphs)
The application which this Court has given to some words and phrases of the Constitution would almost certainly have surprised most of those who participated in the making of the Constitution. Most of them could not have foreseen the extent to which the application of those words and phrases would enable the Commonwealth to dominate the federation and reduce the power of the States to control their domestic affairs. But that does not mean that this Court's interpretation of our Constitution has lacked fidelity to the intentions of those who made the Constitution.
Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association [55] Windeyer J said:
We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.
1. (1959) 107 CLR 208 at 267.
Philosophers are now said to regard the distinction between connotation and denotation as outdated [56] . And in R v Judges of Federal Court of Australia; Ex parte WA National Football League [57] , Mason J said that "[t]he distinction between meaning and denotation is not without its difficulties". But whether criticism of the distinction is or is not valid should not be seen as decisive. What is decisive is that, with perhaps only two exceptions [58] , the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 - which has an historical meaning - the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin [59] , the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts.
Zines, The High Court and the Constitution, 3rd ed (1992), p 16.
2. (1979) 143 CLR 190 at 234.
3. Attorney-General (NSW) v Brewery Employees' Union (NSW) (1908) 6 CLR 469 King v Jones (1972) 128 CLR 614
4. Dworkin, Taking Rights Seriously (1977), p 134.
Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to "trade and commerce with other countries, and among the States" [60] , "trading or financial corporations formed within the limits of the Commonwealth" [61] , "external affairs" [62] and "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" [63] . In these and other cases, the test is simply: what do these words mean to us as late twentieth century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley [64] that our Constitution was "made, not for a single occasion, but for the continued life and progress of the community".
Constitution, s 51(i).
2. Constitution, s 51(xx).
3. Constitution, s 51(xxix).
4. Constitution, s 51(xxxv).
5. (1926) 37 CLR 393 at 413.
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 "marriage" was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably "marriage" now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
But even if we continue to hold, as Windeyer J asserted in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association [65] , that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution [66] . Thus we now see, although it was not seen in 1901, that freedom of communication on matters of government and politics is an indispensable incident of the system of government created by the Constitution and that the law of defamation must not be inconsistent with that freedom [67] . Similarly, we now see, although it was probably not seen in 1901, that "industrial disputes" can be manifested by unions serving logs of claim on employers who reject them [68] .
(1959) 107 CLR 208 at 267.
2. Victoria v The Commonwealth (1971) 122 CLR 353 at 396 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197
3. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
4. Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528
[47]
Furthermore, the indeterminate nature of the words "with respect to" in ss 51 and 52 may result in subjects now falling within the scope of the Commonwealth power although most people in 1901 would have denied that the Commonwealth had power in respect of such subjects. For example, by reason of the present connection of the legal profession with almost every aspect of trade and commerce, taxation, trading and financial corporations, banking, insurance, copyrights, patents, bankruptcy, insolvency and matrimonial causes, the Parliament of the Commonwealth may now have regulatory powers over the profession that would have been regarded as unthinkable in 1901.
[48]
In the present case, however, no current conceptions of the concepts of the Constitution and no propositions, inferences or implications that can be drawn from the Constitution support the cross-vesting legislation. Not only does the Constitution contain no express powers supporting the legislation, it contains negative implications prohibiting such legislation.
[49]
When the Constitution is read as a whole and in the light of its judicial history, there is in my opinion no principled basis upon which the present legislation can be upheld. Our duty is to give effect to the principles of the Constitution even when it is inconvenient to do so. In Professor Dworkin's words [69] :
Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution - an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity. (Emphasis in original.)
1. Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve", Fordham Law Review, vol 65 (1997) 1249, at pp 1249-1250.
[50]
My reasons for reaching the conclusion that the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power can be stated fairly shortly. They are set out with more detail in my judgment in Gould v Brown [70] . The reasons that I gave in Gould also lead to the conclusion that the Jurisdiction of Courts (Cross-vesting) Act 1987 Cth and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid in so far as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.
[51]
Section 71, which is in Ch III of the Constitution, gives the Parliament of the Commonwealth the power to create federal courts to exercise the judicial power of the Commonwealth [71] . But as Dixon CJ, McTiernan and Kitto JJ pointed out in Cockle v Isaksen [72] , "the jurisdiction which a federal court so created may exercise cannot come from s 71 alone. It must be conferred and defined by the exercise of further legislative power." Sections 75, 76 and 77 of Ch III of the Constitution give the Parliament that legislative power by empowering it to confer jurisdiction on federal courts in respect of the "matters" specified in ss 75 and 76. State jurisdiction or State judicial power is not one of those "matters". If a federal court, or for that matter a State court, is invested with jurisdiction to determine a matter under ss 75 and 76, it is exercising federal jurisdiction even when State law must be applied in the proceedings. If State law is determinative in a legal proceeding but there is no "matter" within the meaning of ss 75 and 76, the court determining the rights and liabilities of the parties is exercising State judicial power and its authority to decide those rights and liabilities is an exercise of State jurisdiction.
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 289 Cockle v Isaksen (1957) 99 CLR 155 at 162-163
2. (1957) 99 CLR 155 at 162-163.
Leaving aside the appellate jurisdiction of this Court conferred by s 73 of the Constitution, the exercise of the judicial power of the Commonwealth is confined to the matters specified in ss 75 and 76 of the Constitution. For nearly eighty years, the accepted doctrine of this Court has been that the "express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction" [73] . It follows, and it is also established doctrine, that the power conferred by s 51(xxxix) to make laws with respect to "matters incidental to the execution of any power vested by this Constitution in the Federal Judicature" does not authorise the vesting of jurisdiction in federal courts [74] . Consequently, the Parliament of the Commonwealth can only invest federal courts with jurisdiction to decide the "matters" specified in ss 75 and 76 of Ch III of the Constitution.
In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
2. Willocks v Anderson (1971) 124 CLR 293 at 299 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 477, per Barwick CJ; at 494, per Gibbs J; at 534-535, per Aickin J.
I did not understand any of the above propositions to be challenged in Gould v Brown [75] or in the present proceedings. That being so, it is clear that the Parliament of the Commonwealth cannot give a federal court jurisdiction to exercise State judicial power. Again, I did not understand this proposition to be challenged in the present proceedings.
How then can a State Parliament invest a federal court with a jurisdiction which the Parliament of the Commonwealth, which has created the court, cannot invest in that court? Co-operative federalism is the chief answer given by the parties and the interveners supporting the validity of the legislation. But co-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. It records a result reached as the result of a State and the Commonwealth legislating within the powers conferred on them by the Constitution. Behind its invocation in the present cases lies a good deal of loose thinking.
There is no doubt that, as a result of co-operation between a State and the Commonwealth, the Commonwealth may achieve objects that are beyond the constitutional competence of the Commonwealth [76] . Similarly, as the result of joint legislation, a State and the Commonwealth may achieve an object that neither could achieve by its own legislation [77] . But that is because each political entity has the constitutional power to do what is jointly necessary to achieve the object. Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Commonwealth can constitutionally do, the subject matter is beyond the reach of the legislatures of Australia. Try as they might, for example, the States and the Commonwealth cannot defeat the operation of s 92 of the Constitution, no matter how burdensome or inconvenient its application to government activity may be. That is because s 92 withdraws power from the States and the Commonwealth over the area where it operates. In such cases, "the totality of legislative power in Australia [proves] to be less than the totality of power in other civilised countries" [78] . But that is the price and consequence of federalism. As Professor Dicey pointed out [79] long ago: "Federal government means weak government."
Pye v Renshaw (1951) 84 CLR 58(defeating the operation of s 51(xxxi) by a scheme for the settlement of returned soldiers under which the State acquired land otherwise than on just terms in accordance with an arrangement with the Commonwealth which was alleged to finance the acquisitions and decide who was to be settled).
2. R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535(the setting up of a tribunal to deal with disputes in the coal industry).
3. Menzies KC (arguendo) in James v The Commonwealth [1936] AC 578 at 595To avoid this conclusion, he argued that the Judicial Committee should hold that s 92 did not bind the Commonwealth.
4. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 171.
Co-operative federalism does not assist those supporting the validity of the present legislation. That is because the legislatures of the States have no power, with or without the consent of the Parliament of the Commonwealth, to invest State jurisdiction or judicial power in federal courts. There is not a word in Ch III which indicates expressly or by implication that it authorises the Parliament of the Commonwealth to create federal courts to exercise State jurisdiction or State judicial power. Nor is there a word in Ch III which indicates that the States can invest such jurisdiction or power in the federal courts. That is hardly surprising. "In a dual political system you do not expect to find either government legislating for the other" [80] or its courts. Because that is so, s 77(iii) of the Constitution expressly empowers the Parliament of the Commonwealth to invest "any court of a State with federal jurisdiction". Given the presence of s 77(iii), the absence of any express power in the States to invest State jurisdiction in federal courts is itself enough to indicate that the States lack the power to do so.
In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529
[57]
But in addition, the settled doctrine of this Court is that Ch III exhaustively defines the "matters" that may be the subject of the judicial power of the Commonwealth and exhaustively defines the "matters" that the Parliament of the Commonwealth may invest in the federal courts which it creates. The irresistible conclusion from the terms of Ch III is that it authorises the Parliament of the Commonwealth to create federal courts but only for the purpose of exercising jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution. As Dixon CJ, McTiernan, Fullagar and Kitto JJ pointed out in R v Kirby; Ex parte Boilermakers' Society of Australia [81] :
The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation [82] . In Ch III we have a notable but very evident example.
1. (1956) 94 CLR 254 at 270.
2. 1 Plow 113 [75 ER 176].
[58]
If the terms of ss 71, 75 and 76 of the Constitution impliedly forbid the Parliament of the Commonwealth from adding to the ss 75 and 76 jurisdiction of the federal courts, as everyone accepts that they do, those sections must also logically forbid the States from doing so. Certainly, they must at least forbid the States from investing federal jurisdiction in federal courts. Given the terms of ss 71, 75, 76 and 77, which give to the Parliament of the Commonwealth and no other entity the power to create federal courts and to confer upon them the jurisdiction identified in ss 75 and 76, I cannot accept that the States have any power in respect of the matters identified in those sections. A State could not legislate, for example, to confer jurisdiction on the Federal or Family Court to determine suits between residents of different States - which is one of the matters specified in s 75. That is not because s 109 of the Constitution would operate to invalidate the State law. Indeed, there might be no federal law giving such jurisdiction to the relevant federal court, and, as Cockle v Isaksen [83] makes clear, the mere creation of a federal court confers no jurisdiction on it. If the States could confer jurisdiction on a federal court in respect of a s 75 or s 76 matter and there was no federal law conferring such jurisdiction on the court, s 109 would have no operation. There would be no inconsistency of laws.
[59]
What prevents a State conferring jurisdiction on a federal court in respect of a matter specified in s 75 or s 76 is not s 109, but the negative implications arising from Ch III of the Constitution. By granting power to the Parliament of the Commonwealth to create federal courts and by expressly stating the matters in respect of which the Parliament may confer jurisdiction on those courts, Ch III impliedly forbids the conferring of any other jurisdiction on those courts by the Commonwealth or the States. The express statement of those "matters" would be pointless if the Parliament or the States could disregard them. Moreover, the reasons that show that the States cannot confer jurisdiction on a federal court in respect of ss 75 and 76 matters point just as strongly, perhaps more so because of s 77(iii), to the conclusion that the States cannot confer State jurisdiction on federal courts.
[60]
It would be an extraordinary constitutional result if the power to create a federal court conferred by s 71 extended to creating a court that other polities could invest with non-federal jurisdiction. It would mean that s 71 authorises the Parliament of the Commonwealth to create courts of a very curious kind. They would be curial vessels into which could be poured unlimited jurisdiction by any polity except their creator. Furthermore, although the creator could not confer non-federal jurisdiction on its creation, according to the argument of those supporting the validity of the present legislation, it could consent to other polities investing that jurisdiction on them. But s 71 gives the Parliament no powers in respect of the jurisdiction of federal courts. The creation of a federal court says nothing about its jurisdiction. In Cockle v Isaksen [84] , Dixon CJ, McTiernan and Kitto JJ pointed out that "the jurisdiction which a federal court so created may exercise cannot come from s 71 alone. It must be conferred and defined by the exercise of further legislative power." And as their Honours went on to point out, that legislative power is to be found in ss 75, 76 and 77 of the Constitution.
[61]
These statements of Dixon CJ, McTiernan and Kitto JJ are a complete answer to the contentions that the States can invest jurisdiction in the federal courts and that, because the Commonwealth has created a federal court, it can consent to other polities investing it with jurisdiction. Federal courts are created pursuant to the power conferred upon the Commonwealth by s 71 and their jurisdiction is conferred and defined by s 77 with respect to the matters identified in ss 75 and 76. They are not created under s 71 as courts of general jurisdiction waiting to receive grants of federal and non-federal jurisdiction. They are created for the express purpose of exercising federal jurisdiction. Neither the Parliament of the Commonwealth nor the legislatures of the States can give them any other jurisdiction. With all respect to those who think that the States can do it and that the Parliament of the Commonwealth can consent to it being done, I can only say that it seems to me to be a bizarre conclusion. In the words of Isaacs J in New South Wales v The Commonwealth [85] :
A result so violently opposed to the fundamental structure and scheme of the Constitution requires, as I have before observed, extremely plain and unequivocal language.
1. (1915) 20 CLR 54 at 93.
[62]
One of the remarkable aspects of the argument of those supporting the validity of the legislation is that they contend that the States can invest only judicial power in the federal courts and that they cannot do so without the consent of the Commonwealth. Why do they contend that the States cannot invest non-judicial power in the federal courts? It is because they accept that Ch III impliedly forbids it. That is to say, they accept that the terms of ss 71, 75 and 76 contain an implication that the general powers of the States, saved and continued by ss 106 and 107 of the Constitution, do not extend to investing non-judicial power in the federal courts. Yet those supporting validity deny that those same sections contain an implication that the States cannot invest judicial power in the federal courts.
[63]
But if Ch III impliedly prevents the Parliament of the Commonwealth from investing non-judicial power generally and State judicial power in particular in federal courts, upon what logical basis can it be held that Ch III allows the States to invest State judicial power but forbids them from investing non-judicial power in those courts? The distinction cannot be justified by reference to the doctrine of the separation of powers. In the Constitution, that doctrine is concerned with the separation of the legislative, executive and judicial powers of the Commonwealth. Except in jurisdictions where a doctrine of separation of powers applies, judges can, and do, exercise many non-judicial powers that are compatible with them exercising the judicial power of their jurisdiction. It is the separation of the legislative, executive and judicial powers of the Commonwealth which prevents Australia's federal judges from exercising non-judicial powers. Because those powers are vested in the Parliament or the executive government of the Commonwealth, the Constitution impliedly forbids them being vested in the federal judiciary [86] . But the Constitution's doctrine of separation of powers has nothing to say about the separation of the legislative, executive or judicial powers of the States, except in those rare situations exemplified by Kable v Director of Public Prosecutions (NSW) [87] . State courts can and do exercise many non-judicial powers that are compatible with those courts being invested with federal jurisdiction.
Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 441 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 273 Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 539-540
2. (1996) 189 CLR 51.
Chapter III either forbids the States conferring jurisdiction on the federal courts or it does not. If the States can confer judicial power on federal courts, they can confer non-judicial powers on them, at all events non-judicial power that is not incompatible with the exercise of State judicial power [88] . There is nothing in Ch III that would permit the conferral of one class of State jurisdiction but totally prevent the conferral of the other. If the general powers of the States enable them to legislate for the federal courts, they must be able to legislate generally for those courts. If Ch III does not prevent them doing so in respect of State judicial power, there is no logical basis for holding, for example, that it withdraws from a State the power to invest the federal courts with the jurisdiction of its Supreme Court which may well require the exercise of matters calling for the exercise of non-judicial power as that term is understood in Ch III.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
The second concession of those supporting the validity of the legislation is even more remarkable. It is that the vesting by the States is ineffective until the Parliament of the Commonwealth gives its consent to that vesting. Unless consent is given, so it is claimed, s 109 of the Constitution would invalidate the attempted vesting of State judicial power in federal courts. According to the written submissions of the Commonwealth, the consent is necessary to "displace the presumption that, in having created federal courts and vested them with federal jurisdiction, it was intended that they only be vested with federal jurisdiction". This statement makes sense only if the Parliament of the Commonwealth has power to invest the federal courts with jurisdiction in addition to federal jurisdiction or it has power to create federal courts to receive non-federal jurisdiction from sources other than itself. Unless one of these conditions is fulfilled, no question of any presumption can arise. Nor unless one of them is fulfilled can s 109 have any application; for that section to operate, the State law must collide with, or enter into the field marked out by, a valid federal law [89] . However, the Parliament of the Commonwealth has no power to enact legislation that could fulfil either condition.
Ex parte McLean (1930) 43 CLR 472 at 483; O'Sullivan v Noarlunga Meat Ltd (1956) 95 CLR 177 at 186 Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 at 120
It is common ground that the Parliament has no power itself to invest non-federal jurisdiction in federal courts. That being so, the alleged presumption could only arise if the power given to the Parliament of the Commonwealth by s 71 to create a federal court carries with it the power to create a court that can be invested with non-federal jurisdiction by other polities. For the reasons that I have already given, s 71 confers no such power.
Once it is seen that the Commonwealth has no power to invest its federal courts with non-federal jurisdiction or to create federal courts to receive non-federal jurisdiction, questions of Commonwealth consent or s 109 conflict do not arise. If the States have power to legislate to invest the federal courts with non-federal jurisdiction, the Commonwealth is powerless to prevent them doing so. It lacks any power to enter the field of non-federal jurisdiction. Consequently, it cannot create a s 109 issue. It could, of course, raise s 109 issues in respect of the matters referred to in ss 75 and 76 of the Constitution if, contrary to my view, the States have power to confer jurisdiction on federal courts. If, for example, a State purported to confer jurisdiction on the Federal or Family Court to determine suits between residents of different States, a s 109 issue might be raised. But no such issue can arise with respect to non-federal jurisdiction.
The parties and interveners supporting the validity of the legislation strongly relied on the incidental power inherent in any grant of power together with the power conferred on the Parliament of the Commonwealth by s 51(xxxix) [90] to support the proposition that the Parliament of the Commonwealth could consent to the States vesting State jurisdiction in federal courts. The negative implications in Ch III of the Constitution are a complete answer to this submission. And if, contrary to my view, the States can vest jurisdiction in federal courts, they do not require the consent of the Parliament of the Commonwealth, as I have already pointed out. But if - again contrary to my view - the States could vest State jurisdiction in federal courts with the consent of the Parliament of the Commonwealth, the Parliament has no power to give that consent. It does not get it from s 71 and it does not get it from the incidental powers.
"The Parliament shall, subject to this Constitution, have power to make laws with respect to: (xxxix) matters incidental to the execution of any power vested by this Constitution in the Federal Judicature "
The submission concerning incidental powers raises two questions. First, what are the relevant powers in Ch III? Second, what is the matter which is said to be incidental to these powers or their execution? The relevant powers are the creation of federal courts and the conferring of federal jurisdiction upon them. The matter said to be incidental to these powers or their execution is the Parliament of the Commonwealth's consent to State legislatures investing federal courts with State jurisdiction.
In R v Kirby; Ex parte Boilermakers' Society of Australia [91] , Dixon CJ, McTiernan, Fullagar and Kitto JJ said that "[t]he judicial power, like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective". But the effectiveness of the creation of federal courts or the conferring upon them of federal jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution does not require the exercise of State jurisdiction. Conferring State jurisdiction on federal courts may make the exercise of State jurisdiction more effective. But it does nothing for the effective exercise or execution of federal jurisdiction or the creation of federal courts. Indeed, it could plausibly be argued that conferring State jurisdiction on federal courts hampers the effective exercise of the federal jurisdiction of those courts by diverting the time and resources of federal judges from the determination of matters of federal jurisdiction. But whether that be so or not, the jurisdiction which the States purport to confer on the federal courts has nothing to do with federal jurisdiction or the execution of the powers of the federal courts.
Those supporting the validity of the legislation by reference to the incidental powers have to overcome the formidable barrier that the cross-vesting of State judicial power has nothing to do with federal jurisdiction. If the substratum of fact which gives rise to a matter in federal jurisdiction cannot be effectively disposed of without the application of State law, the issues of State law are determined in the exercise of federal jurisdiction [92] . As Mason, Brennan and Deane JJ pointed out in Stack v Coast Securities (No 9) Pty Ltd [93] , federal jurisdiction is "not restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part". The determination of State law issues in such circumstances is part of the "accrued jurisdiction" of the federal court. Federal courts do not need the States, with or without the consent of the Parliament of the Commonwealth, to confer jurisdiction upon them before they can determine issues arising under their accrued jurisdiction. But the jurisdiction which the legislation in the present proceedings purports to confer upon the federal courts is not accrued federal jurisdiction. It is an attempt to confer State jurisdiction in respect of controversies that fall outside the realm of federal jurisdiction. Apart from the fact that a litigant in a federal court has sought to raise in that court a separate and distinct non-federal claim, the alleged incidental matter has nothing to do with the federal courts or their federal jurisdiction.
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
2. (1983) 154 CLR 261 at 290.
Re Wakim; Ex parte McNally Re Wakim; Ex parte Darvall
I would dismiss the applications for prohibition in these matters on the ground that the applicants have failed to show that their cases do not fall within the accrued jurisdiction of the Federal Court of Australia.
Whether an issue, whose resolution depends upon State law or the common law, is within the accrued jurisdiction of the Federal Court depends upon whether it is part of a "matter" arising under s 75 or s 76 of the Constitution. To be part of that "matter" it must be part of a single controversy. And as the Court said in Fencott v Muller [94] , that "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships". As the Court went on to say [95] in that case, "in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter".
(1983) 152 CLR 570 at 608.
2. Fencott (1983) 152 CLR 570 at 608See also Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294
I am sceptical as to whether there is a single controversy in this matter. There are three separate proceedings. The parties in each of those proceedings are not identical. The claim against the Official Trustee is based on a federal statute. The claims against the solicitors and Mr Darvall are based on the common law. This list of differences points strongly against all of them being a "matter" for the purpose of s 75 or s 76 of the Constitution.
However, there will ordinarily be a single controversy and, therefore, a "matter" for the purpose of Ch III if all the claims arise out of "a common substratum of facts" [96] . Moreover, in Fencott v Muller [97] Mason, Murphy, Brennan and Deane JJ said that there may be a single controversy even though the facts from which the various claims arise "do not wholly coincide". Thus, if a plaintiff has been injured in an accident as a result of independent acts of negligent driving by a Commonwealth employee and a private citizen, the High Court will have jurisdiction under s 75(iii) in respect of both claims even though the acts or omissions constituting negligence and the facts giving rise to them are very different.
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512
2. (1983) 152 CLR 570 at 607.
The pleadings in this case suggest that much of the factual material that will be admissible against the solicitors and Mr Darvall will have no relevance to the claim against the Official Trustee. Significantly, the Official Trustee has made no cross-claim against the solicitors or Mr Darvall. Nor has the Official Trustee alleged in its defence that it relied on the opinion of solicitors or counsel in following the course of action which is alleged to give rise to a breach of duty on its part. These considerations point strongly to there being more than one controversy. Nevertheless, the damage claimed in each action is identical. Whatever is recovered against one party will reduce the amount that can be recovered against the others.
In these circumstances, I am not prepared to say upon the materials before us that the matter is outside the jurisdiction of the Federal Court. It may be that, upon a full examination of the facts of the case, it will become apparent that the issues in the proceedings against the solicitors and Mr Darvall cannot fairly be described as involved in the "matter" against the Official Trustee. If that is the case, the applicants will be able to obtain a writ of prohibition in respect of the proceedings against them.
Accordingly, I would dismiss these applications for prohibition as premature. Since the hearing, Mr Darvall has died. I agree with the orders which Gummow and Hayne JJ propose in respect of Mr Darvall and with their reasons for those orders.
So far as Mr Amann is concerned, I agree with Gummow and Hayne JJ that there is no basis upon which this Court can properly refuse to issue a writ of prohibition. I am unable to agree, however, that the Court should refuse prohibition to Mr Gould either on discretionary grounds or by reason of res judicata or issue estoppel. Those doctrines are common law doctrines. As this Court made plain in Lange v Australian Broadcasting Corporation [98] , the common law cannot be at odds with the Constitution and must conform with it. Notwithstanding our decision in Gould v Brown [99] , which concerned Mr Gould, the Court is now, by a substantial majority, of the opinion that the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 cannot constitutionally invest State judicial power in the Federal Court of Australia. The orders made in Gould v Brown have no constitutional effect. For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown . No doubt, as Latham CJ said of invalid legislation [100] , "he will feel safer if he has a decision of a court in his favour". That is because those relying on the earlier decision may seek to enforce it against Mr Gould.
(1997) 189 CLR 520.
2. (1998) 193 CLR 346.
3. South Australia v The Commonwealth (1942) 65 CLR 373 at 408
Where a litigant has unsuccessfully challenged a legislative provision on constitutional grounds and a later decision reverses the earlier holding, the Court has the discretion whether to extend time to allow the litigant once again to challenge the legislation. Ordinarily in those circumstances, the discretion should be exercised in favour of the citizen. Cases may arise where it is unfair to the defendant to allow a fresh challenge to occur having regard to the lapse of time and a change of circumstances on the part of the defendant. But such matters are not decisive in the present case. Furthermore, the liberty of Mr Gould is involved. And it would be incongruous for the Court to quash orders against Mr Amann but not against his fellow director, Mr Gould.
In my opinion prohibition should go in both cases. However, prohibition should be limited to prohibiting further steps in the Federal Court pursuant to the order for winding up. The winding up order was made without jurisdiction. But more than six years have elapsed since it was made, the liquidator has incurred expenses in the winding up including the cost and expense of litigation in the earlier proceedings and has perhaps incurred other significant liabilities on behalf of the corporation for which he would be responsible if the winding up order was a nullity. Furthermore, in the present state of the evidence, we do not know whether innocent third parties have acquired rights or incurred liabilities and expense as a result of the making of the winding up order. In those circumstances, the winding up order should not be quashed.
Since the recent decision of this Court in Northern Territory v GPAO [101] , the jurisdiction of the Federal Court to make the orders in question cannot be challenged. Because that is so, I agree with the orders proposed by Gummow and Hayne JJ in this proceeding.
In 1987 the Commonwealth and each of the States passed legislation [102] to establish what the preambles to those acts describe as "a system of cross-vesting of jurisdiction between [federal, State and Territory] courts, without detracting from the existing jurisdiction of any court".
In each jurisdiction, the short title of the relevant Act is Jurisdiction of Courts (Cross-vesting) Act 1987.
The Jurisdiction of Courts (Cross-vesting) Act 1987 Cth (the Commonwealth Cross-vesting Act) provides:
9(1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross-vesting of jurisdiction.
(2) The Federal Court, the Family Court or the Supreme Court of a Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and
(b) hear and determine a proceeding transferred to that court under such a provision.
4(1) The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters.
(2) The Family Court has and may exercise original and appellate jurisdiction with respect to State matters.
(3) The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters.
(4) The State Family Court of another State has and may exercise original and appellate jurisdiction with respect to State matters.
(a) invest the Federal Court, the Family Court or a Supreme Court with; or
There are minor variations in the text of the State Acts. Nothing turns on the variations and we will not notice them further. For convenience we have taken the text of the New South Wales Act as typical.
"State matter" is defined in each State Cross-vesting Act as:
(a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
During 1989 and 1990, the Commonwealth and each of the States passed legislation intended to replace the co-operative scheme of companies and securities codes that had operated between 1982 and 1989. The Commonwealth enacted the Corporations Act 1989 Cth (the Commonwealth Corporations Act) and the Australian Securities Commission Act 1989 Cth and made regulations under those Acts. The Commonwealth Corporations Act provides in s 5:
The Corporations Law set out in section 82 as in force for the time being:
(a) applies as a law for the government of the Capital Territory; and
(b) as so applying, may be referred to as the Corporations Law of the Capital Territory.
Each State passed an Act [104] , the purposes of which were described [105] as being:
(a) to apply certain provisions of the Corporations Act 1989 of the Commonwealth and the Australian Securities Commission Act 1989 of the Commonwealth and of regulations under those Acts as laws of [name of State]; and
(b) to apply certain other laws of the Commonwealth as laws of [name of State] for the purpose of the administration and enforcement of the law relating to corporations, the securities industry, the futures industry and some other matters.
In each State the short title of the relevant Act is Corporations ([name of State]) Act 1990. Again there are minor variations in the text. Again, for convenience, we have taken the text of the New South Wales Act as typical.
2. Section 1(2) of each State Corporations Act.
Section 82 of the Commonwealth Corporations Act sets out the Corporations Law ACT [106] . The provisions that are applied by the State Corporations Acts include the Corporations Law set out in s 82 of the Commonwealth Corporations Act [107] .
Section 12(1) of the Commonwealth Corporations Act provides that the Corporations Law ACT may be referred to simply as the Corporations Law.
2. Section 7 of each State Corporations Act.
Part 9, Div 1 of the Commonwealth Corporations Act makes provision for vesting and cross-vesting of civil jurisdiction in matters arising under the Corporations Law. Two provisions should be mentioned. Section 49 provides:
(a) the jurisdiction of courts in respect of civil matters arising under the Corporations Law of the Capital Territory; and
(b) the jurisdiction of the courts of the Capital Territory in respect of civil matters arising under any Corporations Law of a State;
(c) the Jurisdiction of Courts (Cross-vesting) Act 1987; and
(2) Nothing in this Division affects any other jurisdiction of any court.
(1) Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations Law of the Capital Territory.
(2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of each State and the Capital Territory with respect to civil matters arising under the Corporations Law of the Capital Territory.
(3) The jurisdiction conferred on a Supreme Court by subsection (2) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.
(Section 51A makes similar provision for conferring jurisdiction on the Family Court with respect to civil matters arising under the Corporations Law ACT.)
[91]
Section 42 of each of the State Corporations Acts provides:
(1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, as it applies as a law of [name of State], jurisdiction is conferred on the Supreme Court of [name of State] and of each other State and the Capital Territory with respect to civil matters arising under the Corporations Law of [name of State].
(2) The jurisdiction conferred on a Supreme Court by subsection (1) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.
(3) Jurisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of [name of State].
[92]
Section 56 of the Commonwealth Corporations Act then deals with the exercise of jurisdiction pursuant to cross-vesting provisions. It provides:
(1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State or Territory relating to cross-vesting of jurisdiction with respect to matters arising under the Corporations Law of the State or Territory.
(2) The Federal Court, the Family Court or a court of the Capital Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on it by a law of a State corresponding to this Division with respect to matters arising under the Corporations Law of a State; and
(b) hear and determine a proceeding transferred to it under such a provision.
[93]
The applicants or prosecutors in each of the present proceedings in this Court seek to challenge the validity of the cross-vesting provisions that are said to apply in the matter that gives rise to that proceeding. Those provisions are s 9 of the Commonwealth Cross-vesting Act and ss 51 and 56 of the Commonwealth Corporations Act.
[94]
The challenges to the validity of those provisions present issues of considerable importance in Australian constitutional law. A federal structure of government involves the demarcation of powers and, since the time of Marshall CJ, this has been understood as placing upon a court such as this Court responsibility to construe the Constitution and to determine where the line falls in particular instances. The Court is entrusted with the preservation and application of constitutional distinctions. Were the Court to discard those distinctions, on the ground that at a particular time and to some minds they appear inconvenient or otherwise unsatisfactory, the Court not only would fail in its task but would exceed its authority.
[95]
Some (but not all) of the questions that arise in the present proceedings were considered by the Court in Gould v Brown [108] . That was an appeal against a judgment of the Full Court of the Federal Court delivered in one of three matters that involved the same (or substantially the same) issues. The Full Court of the Federal Court considered [109] five questions that had been referred to the Full Court for determination pursuant to s 20(1A) of the Federal Court of Australia Act 1976 Cth and O 29 of the Federal Court Rules. Those questions concerned the validity of certain of the provisions of the Commonwealth and State Cross-vesting Acts [110] and of certain of the cross-vesting provisions of the Commonwealth and State Corporations Acts [111] . The Full Court held that the impugned provisions were valid and ordered that the questions be answered accordingly. The appeal to this Court was dismissed with costs. Three of the six Justices who heard the appeal to this Court were of the opinion that the appeal should be disposed of in that way [112] ; the other three Justices would have allowed the appeal [113] . The Court being equally divided in opinion, the decision appealed from was affirmed [114] .
(1998) 193 CLR 346.
2. BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451
3. Section 4(1) of the Western Australian Cross-vesting Act and s 9(2) of the Commonwealth Cross-vesting Act.
4. Section 56(2) of the Commonwealth Corporations Act and s 42(3) of the New South Wales and Victorian Corporations Acts.
5. Gould v Brown (1998) 193 CLR 346 at 393, per Brennan CJ and Toohey J; at 501, per Kirby J.
6. Gould v Brown (1998) 193 CLR 346 at 411, per Gaudron J; at 432, per McHugh J; at 463-465, per Gummow J.
7. Judiciary Act 1903 Cth, s 23(2)(a).
Four proceedings have been heard together. Two (Re Wakim; Ex parte McNally and Re Wakim; Ex parte Darvall ) are applications for prohibition directed to the Federal Court of Australia and arise out of, or are said to be connected with, bankruptcy proceedings in the Federal Court. One (Re Brown; Ex parte Amann ) is an application for certiorari to quash certain orders of the Federal Court and for prohibition directed to the Federal Court. One of the orders that it is sought to quash is an order for winding up a company purportedly made by the Federal Court under the Corporations Law of a State. That order for winding up (of Amann Aviation Pty Ltd) lay at the root of one of the proceedings considered by the Full Court of the Federal Court in BP Australia Ltd v Amann Aviation Pty Ltd and of the proceeding in this Court in Gould v Brown .
The last of the four present proceedings (Spinks v Prentice ) is an application for special leave to appeal from an order of the Full Court of the Federal Court [115] . The Full Court dismissed an appeal from orders made by a single judge of that Court, affirming orders of a Registrar of the Court that summonses under s 596B of the Corporations Law ACT issue to certain persons requiring their attendance for examination on matters relating to the promotion, formation, management, administration or winding up of White Constructions (ACT) Pty Ltd (In liq) (White ACT) and, under s 597(9) of the Corporations Law ACT, that certain persons produce documents at those examinations. White ACT, a company taken to be incorporated under the Corporations Law ACT [116] , has been ordered to be wound up by the Federal Court.
Spinks v Prentice (1998) 87 FCR 89
2. Corporations Law, s 126. (The Corporations Law was substantially amended by the Company Law Review Act 1998 Cth. What was previously dealt with by s 126 is now dealt with by ss 1362CA and 1362CB. Nothing turns on the changes made by the 1998 Act.)
It will be necessary to consider in more detail the history of the matters that give rise to the four proceedings now before this Court and the consequences that are said to follow from that history. For the moment it is enough to note that in each case the matter or matters in which the jurisdiction of the court concerned is challenged is a matter (or are matters) pending in the Federal Court of Australia. In each case, then, the question is whether jurisdiction has been validly conferred on that Court - a court created by the Parliament.
The respondents in each proceeding and each of the interveners (the Commonwealth, all the States and the Australian Capital Territory and Northern Territory) submitted that the Court should not reopen or reconsider Gould v Brown . (In Re Brown; Ex parte Amann , additional arguments were deployed against reconsideration and it will be necessary to deal with those separately. It is as well, however, to deal first with the more general arguments.)
Stating the question as whether the Court should reconsider or reopen Gould v Brown obscures important considerations. The order that was made in Gould v Brown was made pursuant to s 23(2)(a) of the Judiciary Act. It was made in circumstances where the Court was, as s 23(2)(a) says, "equally divided in opinion". That is, there was no opinion on the issues raised that was an opinion commanding the assent of a majority of the Court. It follows that, although the decision in Gould v Brown disposed finally of the appeal and bound other courts in Australia to arrive at a like result on the issues it dealt with, it established no principle or precedent having authority in this Court. There is, then, no question in the present matters of the Court reopening or reconsidering one of its earlier decisions. It is unnecessary to examine the circumstances in which the Court will do that.
It was submitted that the Court should adopt a different rule from the rule stated by Dixon J in Tasmania v Victoria [117] and subsequently applied on several occasions [118] (that a decision of a full court of this Court in which opinions are equally divided creates no precedent binding this Court). But any different rule must grapple with the difficulty of identifying what principle is established by a decision of an equally divided Court. In general, this Court considers itself bound by its earlier decisions. (The exceptions to, or qualifications on, that general rule are of no immediate relevance.) But what is binding is not the order that is made disposing of the particular proceeding. The Court is bound by the principles of law that are established by its decisions. The expedient prescribed by s 23 of the Judiciary Act enables a decision to be given in the particular case but the application of that provision does not give to the opinion of those members of the Court who favoured that disposition of the matter any special status. And it is not possible in a case such as Gould v Brown to resort to the decision of the court below as serving to identify the principle that is established by the decision. That is, the relevant question is not whether some principle can be found to have commended itself to a majority of judges who considered the matter; the question is whether any principle was established in this Court that the Court should consider authoritative, to be overruled only in what Aickin J said in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [119] "may conveniently, but imprecisely, be described as special circumstances". No such principle was established in Gould v Brown .
(1935) 52 CLR 157 at 183-185.
2. Western Australia v Hamersley Iron Pty Ltd [No 2] (1969) 120 CLR 74 at 82-83, per Kitto J; at 85, per Menzies J; Milne v Federal Commissioner of Taxation (1976) 133 CLR 526 at 533, per Barwick CJ; Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 348, per Barwick CJ; at 364-365, per Stephen J; at 430-432, per Aickin J; at 445, per Wilson J.
3. (1981) 146 CLR 336 at 432.
Considerable emphasis was given in the arguments of those supporting the validity of the cross-vesting arrangements to the facts that both the general cross-vesting arrangements and the similar arrangements made under the Corporations Acts have operated for some years and have the support of the Commonwealth and all of the States and mainland Territories. This was said to be a further reason not (as the argument had it) to reopen Gould v Brown . But neither the time for which the provisions have stood without challenge nor the support of all governments in Australia can relieve the Court of deciding what it is that the Constitution permits or requires.
It was suggested in argument that, in considering the validity of the legislation, significance should be attached to the statement in the preamble as to the legislative purpose of ameliorating what is identified as inconvenience and expense occasionally caused to litigants by jurisdictional limitations in federal, State and Territory courts. However, the purposes, motives or intentions of the relevant legislatures and their members do not provide a criterion by which validity is to be determined [120] . Rather, it is the operation and effect of the law in question which defines its constitutional character [121] .
H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 560-561
2. Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 352-353, per Brennan CJ and McHugh J; at 372, per Gummow and Hayne JJ.
The construction of the Commonwealth cross-vesting provisions
Much of the argument advanced in favour of validity sought to characterise the nature of the cross-vesting arrangements made by the general cross-vesting legislation and by the Corporations legislation as a conferring of jurisdiction in State matters on the Federal Court (and the Family Court) by State legislation and a consent to that conferral by the Commonwealth Act. The argument focused, then, on whether the Commonwealth could "consent" to the giving of jurisdiction to courts that it had created pursuant to s 71 of the Constitution.
The language of "giving" and "consent to reception" of jurisdiction was used in aid of the argument that the cross-vesting arrangements are no more than one example of "co-operative federalism", a principle which, it was said, is embedded in the Constitution [122] . But the use of such language must not be permitted to obscure what it is that the legislation provides. Section 9(2) of the Commonwealth Cross-vesting Act says that the Federal Court (and certain other courts) "may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction". (Section 56(2) of the Commonwealth Corporations Act is in terms that are not materially different.) In their context, the better view of the effect of these provisions is that they seek to confer jurisdiction on the Federal Court, not that they give permission for other polities in the federation to do that. The reasons why these sections should be construed in the way we have described are of importance to the argument about the validity of the impugned cross-vesting provisions.
R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 552, per Gibbs CJ; at 559-564, per Mason J; at 566, per Murphy J; at 579-582, per Brennan J; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-131
In Gould v Brown a deal of argument was directed to whether the Parliament of a State has power to confer jurisdiction on a court not created by that legislature. Although this point was given less emphasis on the hearing of the present matters, it is as well to deal with it. The competing considerations are set out in the joint judgment of Brennan CJ and Toohey J [123] and the judgment of Kirby J [124] in Gould v Brown . Brennan CJ and Toohey J concluded that the Parliament of a State does have power "to vest jurisdiction under State law in a non-State court even if that power had not existed at the establishment of the Constitution" [125] . Kirby J was of the same opinion [126] .
Gould v Brown (1998) 193 CLR 346 at 376-378
2. Gould v Brown (1998) 193 CLR 346 at 482-485
3. Gould v Brown (1998) 193 CLR 346 at 378
4. Gould v Brown (1998) 193 CLR 346 at 485
It may be right to say that there is no reason why the Parliament of a State cannot pass a law that provides (in effect) that the courts of another polity within or outside the federation are to have jurisdiction over certain kinds of matter. But that law will be of no effect unless the courts of that other polity give it effect. And that directs attention to what the law of that other polity provides. The point can be seen most clearly in an international setting: does the law of the polity whose courts have been given jurisdiction by another polity permit or require those courts to exercise that jurisdiction? Arrangements of that kind can be seen in relation to appeals to this Court from Nauru. Nauruan law may provide for appeals to this Court but if jurisdiction is validly conferred on the Court it is conferred by legislation of the Commonwealth Parliament [127] , not by any Act of the Nauruan legislature.
What gives courts the authority to decide a matter is the law of the polity of the courts concerned, not some attempted conferral of jurisdiction on those courts by the legislature of another polity. That is because of the very nature of judicial power as "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property" [128] . The authority to decide comes from the sovereign authority concerned, not from some other source.
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357, per Griffith CJ.
Within the Australian federation other considerations are said to intrude: not least the consideration that the arrangement in question is made by the polities of the "one indissoluble Federal Commonwealth" [129] . It is, therefore, of critical importance to identify what the Constitution permits.
Several fundamental propositions must be kept steadily in mind. First, the compact is a federal compact with all the attendant advantages and disadvantages of such arrangements. Secondly, the subject of the judicial power of the Commonwealth is dealt with in the Constitution as a subject that is different and distinct from the judicial power of the States. Thirdly (and, in part, this is a corollary of the second point) the Constitution does not provide for a single or unitary system of courts. The Commonwealth Parliament does not have power to make laws with respect to "courts" or "the legal system". Fourthly, when it is said that there is an "integrated" or "unified" judicial system in Australia [130] , what is meant is that all avenues of appeal lead ultimately to this Court and there is a single common law throughout the country. This Court, as the final appellate court for the country, is the means by which that unity in the common law is ensured.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102, per Gaudron J; at 112-114, per McHugh J; at 137-139, per Gummow J.
[111]
The first of those points requires no development. It is self-evidently true. The remaining points, however, may need a little elucidation in two respects. First, in R v Kirby; Ex parte Boilermakers' Society of Australia [131] the majority of the Court described the role of the federal judicature in a federal system. They said [132] :
In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme. A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them. The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature. The demarcation of the powers of the judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become therefore a consideration of equal importance to the States and the Commonwealth. While the constitutional sphere of the judicature of the States must be secured from encroachment, it cannot be left to the judicial power of the States to determine either the ambit of federal power or the extent of the residuary power of the States. The powers of the federal judicature must therefore be at once paramount and limited. The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained. These very general considerations explain the provisions of Ch III of the Constitution which is entitled "The Judicature" and consists of ten sections.
Secondly, since In re Judiciary and Navigation Acts [133] it has been accepted [134] that the Commonwealth Parliament may not confer original jurisdiction on this Court except in relation to a "matter". And the reason that this is so is that s 76 is the exclusive source of power to confer original jurisdiction on this Court. The basis of the reasoning that leads to that conclusion was stated by the majority in Boilermakers [135] in the following way:
[T]o study Ch III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Ch III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia. No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Ch III. The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation [136] . In Ch III we have a notable but very evident example.
If, then, s 76 is the exclusive source of power to confer original jurisdiction on this Court it follows, first, that the jurisdiction that may be conferred on a federal court under s 77 is similarly limited to the heads identified in ss 75 and 76 and, secondly, that no other polity can confer jurisdiction on a federal court.
1. (1956) 94 CLR 254.
2. Boilermakers (1956) 94 CLR 254 at 267-268
3. (1921) 29 CLR 257 at 264-267.
4. See, eg, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 530, per Aickin J; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 275, 281, per Gibbs CJ; at 289-290, per Mason, Brennan and Deane JJ; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 579, per Deane J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606, 626, per Deane J; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 313, per Brennan J; at 321, per Toohey J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26-27, per Brennan, Deane and Dawson JJ.
5. (1956) 94 CLR 254 at 270.
6. 1 Plow 113 [75 ER 176].
[112]
Those who sought to support the validity of the legislation that is challenged in these proceedings did so on two principal bases: first, that any deficiency in the power of either the States or the Commonwealth to enact a cross-vesting scheme was made good by both the States and the Commonwealth legislating to give effect to the scheme and, secondly, that the Commonwealth has power to consent to the conferring of jurisdiction by the States on courts created by the Parliament. It is convenient to deal with the arguments in that order.
[113]
In R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [137] it was held that the Coal Industry Tribunal, a body constituted by the Coal Industry Act 1946 Cth and the Coal Industry Act 1946 NSW, was validly constituted. Gibbs CJ said [138] :
The Constitution effects a division of powers between the Commonwealth and the States but it nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in co-operation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s 92 of the Constitution, a uniform and complete legislative scheme.
Accordingly, it was held in Duncan that the Coal Industry Tribunal could exercise both Commonwealth and State powers and, as was said in R v Lydon; Ex parte Cessnock Collieries Ltd [139] :
By this ingenious legislative device the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them.
But what is of note is that the combined operation is limited according to the constitutional validity which each respective parliament can give. In Duncan there was no doubt that both the Commonwealth and the States had power to give some authority to the Tribunal. The effect of the decision was that the limited power of each was joined to form a body with power greater than any one of the polities, acting alone, could have conferred. It is a case about the complementing of existing powers, not the creation of new powers. In the present cases the immediate question is whether the Commonwealth Parliament has any power either to consent to States conferring jurisdiction on federal courts or itself to confer State judicial power on federal courts. If there is no power for the Commonwealth to take those steps, the fact that all the States wish that it could do so or seek to have it do so, does not supply that absent power. Duncan recognises (as had long been recognised) [140] that the Constitution not only does not forbid Commonwealth-State co-operation, it expressly provides in some respects for such co-operation [141] . It recognises (as again had long been recognised) that, as Starke J said in Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd [142] :
Co-operation on the part of the Commonwealth and the States may well achieve objects that neither alone could achieve; that is often the end and the advantage of co-operation.
But no amount of co-operation can supply power where none exists. To hold to the contrary would be to hold that the Parliaments of the Commonwealth and the States could, by co-operative legislation, effectively amend the Constitution by giving to the Commonwealth power that the Constitution does not give it. It is necessary, then, to identify a relevant power in the Commonwealth.
1. (1983) 158 CLR 535.
2. Duncan (1983) 158 CLR 535 at 552See also at 559-564, per Mason J; at 566, per Murphy J; at 579-582, per Brennan J; at 589-592, per Deane J.
3. (1960) 103 CLR 15 at 20.
4. Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774, per Starke J; Wilcox Mofflin Ltd v New South Wales (1952) 85 CLR 488 at 508-511, per Dixon, McTiernan and Fullagar JJ; at 526-528, per Williams J; R v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 at 20 Airlines of NSW Pty Ltd v New South Wales (1964) 113 CLR 1 at 40, 42, per Taylor J; at 48, per Menzies J; at 51-52, per Windeyer J; Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120 at 179, per Mason and Jacobs JJ. See, since Duncan , Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 130
5. See, eg, s 51(xxxiii) and (xxxiv) providing for the making of laws with respect to acquisition of any railways of the States or railway construction and extension in any State "with the consent" of the State concerned; s 51(xxxvii) providing for the making of laws with respect to matters referred to the Parliament of the Commonwealth by one or more State Parliaments; s 51(xxxviii) providing for the making of laws with respect to the exercise within the Commonwealth at the request or with the concurrence of the Parliaments of all the States directly concerned of powers exercisable at federation only by the Parliament of the United Kingdom or by the Federal Council of Australasia. Reference was also made to ss 84, 105, 105A, 111, 119 and 120.
6. (1939) 61 CLR 735 at 774.
[114]
As we have noted earlier, one limb of the argument proceeded from the premise that all that s 9 of the Commonwealth Cross-vesting Act and the equivalent provisions in the Commonwealth Corporations Act do is express the consent of the Commonwealth to the States conferring State jurisdiction on federal courts. We have also said earlier that this is not the better construction of these provisions. It is, however, convenient to examine the consequences of the argument, if this construction were to be adopted, because the fundamental difficulty in the argument is then revealed.
[115]
The power of consent was said to be found in s 51(xxxix) of the Constitution or in the implied incidental power in s 71 of the Constitution. And it was submitted that it is not to the point to consider whether the Parliament of the Commonwealth could, itself, vest such jurisdiction in a federal court. Indeed this limb of the argument seemed to assume that the Commonwealth could not vest State jurisdiction in a federal court.
[116]
To say that the Parliament may "consent" to vesting of jurisdiction, even if it could not itself vest jurisdiction, invites the closest attention to what is meant by "consent" in this context. It was submitted that the "consent" of the Commonwealth was necessary to avoid what otherwise would be an inevitable application of s 109 of the Constitution to the State legislation. Without this consent, s 109 would apply because (so the argument ran) the Commonwealth's legislation establishing the federal courts concerned would inevitably be read as intending to cover the field to the exclusion of any State's attempted conferral of jurisdiction on the federal courts. On this analysis, all that the consent does is evidence a particular legislative intention about the ambit of other Commonwealth legislation - the legislation that establishes the federal court concerned or defines its federal jurisdiction. (We do not stay to examine the efficacy of such an expression of intention [143] .) It follows that the effect of the legislation is that State judicial power is conferred on federal courts. And it is the legislation of the States that obliges the courts on which the jurisdiction is conferred to exercise that jurisdiction. But if that is so, no question of the power of the Commonwealth intrudes. The Commonwealth has done no more than provide a statement of its legislative intention in providing for the establishment of a definition of jurisdiction of the federal court concerned. On this contention, no resort need be had to s 51(xxxix) or to any implied incidental power to confine the intended reach of the legislation that established the federal court or defines its jurisdiction. But it must then be recognised that the contention is that the States may confer (and have conferred) jurisdiction on the federal judicature. As we have already said, the States cannot do so.
cf University of Wollongong v Metwally (1984) 158 CLR 447
[117]
By contrast, if the Commonwealth's "consent" is to be understood as having some operative effect (operative in the sense of operating to confer, or assist in the conferring of, an authority to decide a matter or class of matter) a question of power does intrude. What is the power of the Commonwealth Parliament to confer this jurisdiction on a federal court?
[118]
The reliance on an incidental power (whether the express power in s 51(xxxix) to legislate with respect to "matters incidental to the execution of any power vested by this Constitution in the Federal Judicature" or an implied incidental power in s 71) must fail. The laws now in question cannot be described as being laws with respect to matters incidental to the execution of a power vested by the Constitution in the federal judicature. And although as was noted by the majority in Boilermakers [144] "[t]he judicial power, like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective" it cannot be said that these laws are necessary or proper to render effective the judicial power that is given by Ch III.
[119]
These incidental powers give no support to the laws now in question because Ch III, and the federal judicature with which it deals, are concerned with the judicial power of the Commonwealth. The judicial power that is conferred by these Acts (whether that is by the operation of the States' laws or the Commonwealth's laws) is not part of the judicial power of the Commonwealth, it is the judicial power of the States. In the case of the general cross-vesting arrangements, it is said to be conferred on the federal judicature to avoid "inconvenience and expense occasionally [being] caused to litigants by jurisdictional limitations in federal, State and Territory courts" [145] . That is, it is conferred in aid of what is thought to be the more efficient disposition of matters that fall within the States ' judicial power. No other justification for the general cross-vesting legislation or the cross-vesting arrangement under the Corporations Acts was put forward in argument.
[120]
No doubt it may be said that the other side of the cross-vesting coin is that federal judicial power is conferred on State courts. But this says nothing about whether the consenting to conferral of State judicial power on federal courts is within an incidental power.
[121]
First, Ch III expressly contemplates that federal judicial power will be invested in State courts. The fact that there is a power to invest State courts with federal jurisdiction does not mean that there must be some capacity to make a reciprocal arrangement. Secondly, and more importantly, the only connection between the investing of State judicial power on federal courts and the judicial power of the Commonwealth is that it is said that it would be "convenient" or "more efficient" if federal courts could exercise State judicial power. These assertions of "convenience" and "efficiency" may well be open to question. It is, perhaps, significant in that regard that the Cross-vesting Acts refer to inconvenience and expense as having been encountered only "occasionally". Further, what is meant in this context by "convenience" and "efficiency" may require rather more analysis than an unthinking resort to the slogan that "arid jurisdictional disputes" are thus avoided; it would be necessary, at least, to test the unstated premises of the assertion that these disputes occur often enough to constitute a real problem and that the cross-vesting arrangements are the only way or the best way of avoiding them. But if it is accepted that the cross-vesting arrangements are convenient and more efficient, the question becomes convenient in what sense, or for whom, and more efficient than what?
[122]
No single formula will describe the relationship that must exist between a power or group of powers and some exercise of power that is said to be incidental to the execution of the principal power or is necessary or proper to render the main grant of power effective. Various descriptions of what is meant by "incidental" power can be found in the cases: "[e]verything necessary to the effective exercise of a power" [146] ; "everything that is reasonably necessary to carry [the power] into effect" [147] ; a provision that is "conducive to the success of the legislation" [148] ; a "choice of means to an authorised end [that] was to complement, and not to supplement, the power granted" [149] ; and no doubt the examples could be multiplied. The central idea is that stated by Marshall CJ in McCulloch v Maryland [150] , cited with approval in Grannall v Marrickville Margarine Pty Ltd [151] :
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
The first focus of inquiry must therefore be on the subject matter of the power to which the step in question is said to be incidental. In the present matters, that is the Commonwealth's power with respect to the judicial power of the Commonwealth. Once it is recognised that this is the main power, it can be seen that it is not necessary to the exercise of that power, and it is not reasonably necessary to carry it into effect, that State judicial power is conferred on federal courts. To put the matter in another way, it is not conducive to the success of the legislation that establishes the federal courts or defines their jurisdiction that State judicial power is conferred upon them. In truth, what is sought to be done by the legislation that now is in question is to supplement the power that the Commonwealth is given by the Constitution with respect to the federal judicature, not to complement it.
1. Baxter v Ah Way (1909) 8 CLR 626 at 637, per O'Connor J.
2. Victoria v The Commonwealth (1957) 99 CLR 575 at 631, per Williams J.
3. Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226 at 235, per Barton A-CJ.
4. Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226 at 235, per Barton A-CJ.
5. (1819) 17 US 159 at 206.
6. (1955) 93 CLR 55 at 77, per Dixon CJ, McTiernan, Webb and Kitto JJ.
[123]
Nor is this, as the Commonwealth and other interveners submitted, simply to apply the maxim expressio unius est exclusio alterius or, as was also suggested, to give undue prominence to the negative implications that are drawn from the text of Ch III. It is to recognise and to give effect to the fundamental considerations about the Constitution to which we referred earlier.
[124]
In any event, any suggestion that the application of the maxim or the drawing of negative implications is at odds with general canons of constitutional interpretation should be rejected. For example, it is well established that paragraphs of s 51 of the Constitution, other than par (xxxi), are not to be interpreted as conferring power to make laws for the acquisition of property for use in carrying out or giving effect to legislation under such paragraphs [152] . A similar point may be made with respect to the significance attached to the exclusion of "State banking" and "State insurance" from the powers conferred by pars (xiii) and (xiv) respectively [153] .
Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371-372, per Dixon CJ; Bourke v State Bank of NSW (1990) 170 CLR 276 at 289-290
2. See Bourke v State Bank of NSW (1990) 170 CLR 276 at 284-286
Kirby J concludes that "[a]n additional and connected source of constitutional authority arises from the implied nationhood power" [154] . This contention was not advanced by any party or intervener and it was, therefore, not explored in argument.
No doubt the legislative and executive powers of the Commonwealth must be understood in light of the fact that the Commonwealth is established as the national polity [155] . It may be, then, that there is power in the Commonwealth "to protect its own existence and the unhindered play of its legitimate activities" [156] . But whatever may be the content of any legislative power implied from the creation and existence of the Commonwealth as the national polity, that power does not authorise the Parliament to consent to the vesting of State jurisdiction in federal courts. Characterising a set of circumstances as having an Australian rather than a local flavour or as a desirable response to the complexity of a modern national society is to use perceived convenience as a criterion of constitutional validity instead of legal analysis and the application of accepted constitutional doctrine.
Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 271-272, per Dixon J; Australian Communist Party v The Commonwealth (the Communist Party Case) (1951) 83 CLR 1 at 188, per Dixon J; Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 396-397, per Mason J; at 412-413, per Jacobs J; The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 252, per Deane J; Davis v The Commonwealth (1988) 166 CLR 79 at 92-93, per Mason CJ, Deane and Gaudron JJ.
2. Black's American Constitutional Law, 2nd ed (1910), s 153, p 210, quoted by Dixon J in the Communist Party Case (1951) 83 CLR 1 at 188.
[127]
The Commonwealth legislation that purports to confer State jurisdiction on federal courts (or, as the respondents and interveners would have it, consented to the conferring of the jurisdiction by the States) is invalid.
[128]
We turn then to consider the consequences of that conclusion for each of the present matters. In doing so, it is necessary to refer to some more of the history that lies behind each.
Re Wakim; Ex parte McNally Re Wakim; Ex parte Darvall
[129]
George Wakim alleges that in March 1980 he was employed as a driveway attendant by a partnership conducted by Tedros Nader and Nawal Nader at a service station in Lakemba, New South Wales. In July 1985, he obtained judgment for $786,801.45 in an action in the Supreme Court of New South Wales for damages for personal injury that he alleged he had suffered in the course of his employment. The action was brought against Tedros Nader alone and the judgment was against him. On 18 October 1985, Mr Nader became bankrupt. (Whether he did so on his own petition or on the making of a sequestration order is not clear but nothing turns on this.) The Official Trustee in Bankruptcy was appointed trustee of his estate and, pursuant to s 58 of the Bankruptcy Act 1966 Cth, his property vested in the Official Trustee. Mr Wakim alleges that he is a very substantial creditor and that he has been admitted to prove in the bankruptcy.
[130]
In June 1987, the Official Trustee brought proceedings in the Supreme Court of New South Wales against Mrs Nawal Nader. By that action, declarations were sought that the partnership between Mr and Mrs Nader had been dissolved and orders were sought for the taking of accounts of the partnership. The Official Trustee retained Lobban McNally & Harney as solicitors to act in the matter. The applicants for prerogative relief in the first matter in this Court (Mr Peter McNally and Mr Terence McNally) were the partners in the firm. (It is convenient to refer to them as "the solicitors".) In December 1987, the solicitors retained the applicant in the second application for prerogative relief, Mr Cholmondeley Darvall QC, to give an opinion on certain questions connected with the proceedings brought against Mrs Nader.
[131]
The proceedings against Mrs Nader were compromised in March 1990. It is alleged that the parties to those proceedings and the bankrupt agreed (among other things) that Mr and Mrs Nader would pay $10,000 to Mr Wakim and that Mrs Nader would buy certain property vested in the Official Trustee (as trustee of the bankrupt estate of Mr Nader) for $400,000. Mr Wakim contends that the Official Trustee should have taken, but did not take, certain steps against Mrs Nader (other than those that were taken) and that if these had been taken it would have increased the amount available to creditors of the estate of Mr Nader.
[132]
In July 1993, Mr Wakim commenced proceedings in the Federal Court against the Official Trustee seeking various orders pursuant to ss 176, 178 and 179 of the Bankruptcy Act. Of most significance for present purposes are the claims made under s 176 of the Bankruptcy Act. That section provides:
(1) Where, on application by the Inspector-General or by a creditor who has or had a debt provable in the bankruptcy, the Court is satisfied that a person who is or has been a trustee of a bankrupt's estate has been guilty (whether before or after the commencement of this section) of breach of duty in relation to the bankrupt's estate or affairs, subsection (2) applies.
(2) The Court may make any one or more of the following orders:
(a) an order directing the person to make good any loss that the bankrupt's estate has sustained because of the person's breach of duty;
(b) if the person is a registered trustee - an order directing the Inspector-General to cancel the person's registration as a trustee;
(c) any other order that the Court considers just and equitable in the circumstances.
Mr Wakim also puts his claims against the Official Trustee in negligence.
[133]
After these proceedings had been commenced against the Official Trustee Mr Wakim brought two further, and separate, proceedings in the Federal Court against, first, Mr Darvall and later against the solicitors. Each of those proceedings is an action for negligence. What duty each was alleged to owe to Mr Wakim is a question that was not agitated in this Court.
[134]
The applicants for prerogative relief (the solicitors and Mr Darvall) contend in this Court that the Federal Court would have jurisdiction in the proceedings against them only if s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 NSW and s 9(2) of the Commonwealth Cross-vesting Act are valid and they contend that those provisions are invalid. The first of these contentions assumes that the claims brought against the solicitors and Mr Darvall are distinct and unrelated non-federal claims [157] (that is, unrelated to the claims made in the proceeding against the Official Trustee). It is necessary to consider that assumption.
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 482, per Stephen, Mason, Aickin and Wilson JJ.
It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament is not "restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part" [158] . In Stack v Coast Securities (No 9) Pty Ltd [159] the majority said:
In this, as in other cases, the recurrent problem is to identify what it is that falls within the Federal Court's accrued jurisdiction. The majority judgment in Fencott v Muller [160] provides this assistance in reaching an answer: "What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter."
1. Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 290, per Mason, Brennan and Deane JJ. See also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Fencott v Muller (1983) 152 CLR 570
2. (1983) 154 CLR 261 at 294, per Mason, Brennan and Deane JJ.
3. (1983) 152 CLR 570 at 608.
The decisions in this Court concerning what has been called the "accrued jurisdiction" [161] of the Federal Court have arisen in cases where the claims have been made in the one proceeding. In the present case there are three separate proceedings - against the Official Trustee, against the solicitors and against Mr Darvall. The pleadings in the three proceedings do not allege that any of the claims is dependent on another, at least not in the sense of any being a claim in which success is alleged to depend upon the result in another of the claims. (In this respect, the claims differ from the common case of a party to a proceeding making a third party claim for damages, contribution or indemnity against a person not a party to the principal proceeding where that claim is predicated on the claimant being held to be liable in the principal proceeding.) It is said, however, that the claims all arise out of a single set of transactions (that set being defined to include all aspects of the conduct of the claim against Mrs Nader). Is there, in these circumstances, a single justiciable controversy? If there is, then the Federal Court has jurisdiction in the whole matter.
Philip Morris (1981) 148 CLR 457 at 474, per Barwick CJ; Stack (1983) 154 CLR 261 at 290, per Mason, Brennan and Deane JJ.
The bringing of three separate proceedings and the joining of different parties in each of those proceedings would ordinarily suggest (and perhaps suggest very strongly) that there is more than one matter. If that were so, it would follow that the question of jurisdiction would have to be resolved separately in each proceeding and without regard to the existence of the other proceedings. Jurisdiction for each proceeding would then depend upon it being shown to be in a matter arising under a law made by the Parliament.
It must be taken to follow from the Court's decisions in Philip Morris, Fencott and Stack , however, that the identification of the justiciable controversy between parties is not determined only by the considerations of there being separate proceedings and different parties in the one court. And in some circumstances a single matter can proceed through more than one court. That follows from the Court's decision in R v Murphy [162] . There, committal proceedings in one court and the trial of indictable offence in another court (there having been an order for committal and the presentation of an indictment) were held to be the curial process for determination of a single matter: the matter which the trial would ultimately determine.
(1985) 158 CLR 596 at 614, 617-618, per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ.
The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.
In Fencott [163] it was said that "in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter." The references to "impression" and "practical judgment" cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships" [164] . There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts" [165] , notwithstanding that the facts upon which the claims depend "do not wholly coincide" [166] . So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other [167] , as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate" [168] , "completely separate and distinct" [169] or "distinct and unrelated" [170] are not part of the same matter.
(1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ.
2. Fencott (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ.
3. Philip Morris (1981) 148 CLR 457 at 512, per Mason J.
4. Fencott (1983) 152 CLR 570 at 607, per Mason J, Murphy, Brennan and Deane JJ.
5. Philip Morris (1981) 148 CLR 457 at 512, per Mason J.
6. Felton v Mulligan (1971) 124 CLR 367 at 373, per Barwick CJ.
7. Philip Morris (1981) 148 CLR 457 at 521, per Murphy J.
8. Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 482, per Stephen, Mason, Aickin and Wilson JJ.
[141]
Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.
[142]
Here, the three proceedings could have been joined in one. The fact that those advising Mr Wakim chose to issue separate proceedings at different times does not mean that the scope of the controversy is limited to the matters raised in the first proceeding. Had the Official Trustee brought a cross-claim against both the solicitors and Mr Darvall immediately after Mr Wakim commenced his proceeding against it and if Mr Wakim had then joined the cross-respondents as respondents to his principal claim, the existence of a single controversy involving several parties would be more apparent than it may be in the present circumstances. But neither the differences in the present procedural history nor the absence of any claim by the Official Trustee against the solicitors and Mr Darvall determines the question whether there is a single controversy.
[143]
The applicants submitted that the test should be qualified by restricting cases of accrued jurisdiction to those in which no party was added in reliance upon accrued jurisdiction. That is, the applicants contended that there must be some federal claim against every respondent in the proceedings.
[144]
This contention was said to find support in the decision of the Supreme Court of the United States in Finley v United States [171] where Scalia J, delivering the reasons of the Court, distinguished "pendent-party jurisdiction" from "pendent-claim jurisdiction". That case turned upon the scope of the jurisdiction conferred upon federal district courts with respect to "civil actions on claims against the United States", the expression used in the Federal Tort Claims Act 1946 [172] . The case did not turn upon the constitutional question of the content of the terms "Cases" and "Controversies" in Art III [173] . As a result of changes made after Finley by the Judicial Improvements Act 1990, it is now enacted [174] :
Except as provided in subsections (b) and (c) [of 28 USC s1367] or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
1. (1989) 490 US 545.
2. 28 USC s1346(b).
3. Chemerinsky, Federal Jurisdiction, 2nd ed (1994), pp 320-321; Wright, The Law of Federal Courts, 5th ed (1994), pp 119-121; Hart and Wechsler's The Federal Courts and the Federal System, 4th ed (1996), pp 969-972.
4. 28 USC s1367(a).
[145]
As we have said, the bringing of separate proceedings and the joining of different parties will often be important facts in deciding whether there is a single justiciable controversy for the purposes of Ch III of the Australian Constitution. But there is no basis in principle for concluding that there can never be accrued jurisdiction where a new party is joined. To adopt such a rule would mean that third party proceedings could never be brought in a federal court unless those third party proceedings were founded in some federal claim. And that points to the underlying difficulty in principle. If the "matter" is to be identified from what the parties allege and how they conduct the proceeding (as Fencott and Stack hold) and if the "justiciable controversy" refers (in part, at least) to the factual dispute between them, there is no warrant for holding that federal jurisdiction ends as soon as a new party (against whom no federal claim is made) is added.
[146]
Each of these proceedings brought by Mr Wakim centres upon the making of claims and bringing of action against Mrs Nader and the prosecution and settlement of those claims and that action. Mr Wakim alleges against the Official Trustee that it was negligent and guilty of breach of duty in not continuing the action against Mrs Nader; he alleges against the solicitors that they negligently failed to advise the Official Trustee of its rights against her; he alleges against Mr Darvall that he negligently failed to advise the Official Trustee of its rights against her. It may be noted that nowhere in the Official Trustee's defence to Mr Wakim's claim does it allege that it acted in reliance on the advice of the solicitors or counsel and it makes no cross-claims against them. Indeed, the pleadings in the proceeding between Mr Wakim and the Official Trustee say nothing whatever about the role of the solicitors or counsel in the matter.
[147]
The cases arise out of one set of events. Of most significance is the fact that the damage which Mr Wakim alleges he has suffered as a result of what he says are the various breaches of duty by the Official Trustee, the solicitors and Mr Darvall is, in each case, the loss of what he might have recovered in the bankruptcy had the claims against Mrs Nader been prosecuted differently. There is, then, but a single claim for damages that he seeks to pursue against each of the parties he has sued. And judgment and recovery against one will diminish the amount that may be recovered from the others. There is, in these circumstances, that common substratum of facts in each proceeding of which Mason J spoke in Philip Morris [175] . And it is the existence of that common substratum that leads to the conclusion that the three proceedings raise a single justiciable controversy. Accordingly, the proceedings against the solicitors and Mr Darvall are within the jurisdiction of the Federal Court.
(1981) 148 CLR 457 at 512. See also Fencott (1983) 152 CLR 570 at 604-605, per Mason, Murphy, Brennan and Deane JJ.
Mr Darvall died after the hearing of argument. Had we been of the view that he was entitled to the relief claimed, difficult questions may have arisen about whether a legal personal representative was entitled to continue the application or would have had to make a fresh application. Because we consider that the proceedings in the Federal Court against the solicitors and against Mr Darvall are within the jurisdiction of that Court it is unnecessary to examine these questions.
In Philip Morris [176] , Barwick CJ said that the exercise of the "accrued" jurisdiction "is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter". In Stack , Mason, Brennan and Deane JJ refer to this proposition with approval [177] but say that the idea is similar to the process of identification of a related matter mentioned in Fencott as being "a matter of impression and of practical judgment" [178] . There may be some difficulty in analysing the question as one of "discretion". It is not clear what principles or criteria would inform the exercise of a discretion of this kind. It may be that the better view is that the references to "discretion" are not intended to convey more than that difficult questions of fact and degree will arise in such issues - questions about which reasonable minds may well differ. It is, however, not necessary to decide what is meant by the references to discretion in this context.
(1981) 148 CLR 457 at 475.
2. Stack (1983) 154 CLR 261 at 294-295
3. Fencott (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ.
[150]
The application for prohibition by the solicitors should be dismissed with costs. Mr Darvall's application should also be dismissed. No legal personal representative of Mr Darvall having been appointed, the costs of Mr Darvall's application should be reserved for consideration by a single Justice on application made on not less than seven days' notice.
[151]
On 30 November 1992, the Federal Court ordered that Amann Aviation Pty Ltd (a company incorporated under the law of New South Wales) be wound up by the Court and that Mr Martin Brown be appointed liquidator. On 7 July 1995, the Federal Court made an order that certain persons (including the applicants in this Court, Robert Otto Amann and Vanda Russell Gould) should be summonsed to attend before the Court to be examined on oath or affirmation about the examinable affairs of Amann Aviation. The persons to be examined were required to produce certain documents at the commencement of their examinations. The summonses that were issued were described as having been issued under s 596A of the Corporations Law (presumably the Corporations Law under which the winding up order was made).
[152]
It is necessary to consider in more detail some of the consequences alleged to follow from the Court's decision in Gould v Brown . Mr Amann was not a party to the proceedings in Gould v Brown ; Mr Gould was.
[153]
As has already been noted, the order the subject of the appeal in Gould v Brown was an order of the Full Court of the Federal Court answering certain questions reserved for consideration by a Full Court. The order reserving questions for consideration was made in an application brought by notice of motion seeking (among other things) declarations that the Federal Court had no jurisdiction to order that Amann Aviation be wound up and had no jurisdiction to conduct examinations under s 596A of the Corporations Law or Pt 5.9, Div 1 of the Corporations Law, and an order setting aside the summonses for examination. That is, the relief sought in the notice of motion was final relief. The appeal to this Court being dismissed, the orders of the Full Court stand unaffected. By those orders the questions that were reserved were answered in the sense contended for by the liquidator of Amann Aviation and contrary to the contentions of (among others) Mr Gould.
[154]
Ordinarily, then, it might have been expected that giving effect to the answers given by the Full Court an order would have been made dismissing the notice of motion [179] . In fact, however, no order disposing of the notice of motion has ever been made. The examinations continued and have now been concluded.
Such an order might be made under O 29, r 3 or r 4 of the Federal Court Rules.
The liquidator, and the Commonwealth, contended in this Court that both applicants are precluded from reagitating any issue decided in Gould v Brown . The applicants submitted that there is no preclusion and that if the Court were to form the view that the impugned legislation is invalid, certiorari should go to quash the orders for winding up and for issue of summonses for examination, prohibition should go to preclude further steps in the winding up and any further examination of the applicants and orders should be made that the tapes, transcripts and any other note or record of the examinations of the applicants be delivered up for destruction.
Whether doctrines of issue estoppel or res judicata should be given some different and less stringent application in constitutional litigation [180] was touched on in argument but it is a subject which need not be examined in this case. If what might be called the accepted ordinary principles of res judicata and issue estoppel are applied to the circumstances of these matters, Mr Amann is not precluded from seeking or obtaining whatever relief he is otherwise entitled to obtain. Mr Amann was not a party to the earlier litigation. Although it was suggested that he was precluded from agitating any issue decided in Gould v Brown , the fact that he was not a party to those proceedings prevents the application of any doctrine of preclusion. Identity of parties is a necessary element for the application of both issue estoppel and res judicata [181] .
Queensland v The Commonwealth (1977) 139 CLR 585 at 597, per Gibbs J; at 605, per Stephen J; cf Victoria v The Commonwealth (1957) 99 CLR 575 at 654, per Fullagar J.
2. Blair v Curran; Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464 at 531, per Dixon J; Jackson v Goldsmith (1950) 81 CLR 446 at 466, per Fullagar J; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507, per Deane, Toohey and Gaudron JJ.
It was submitted that although not a party to the earlier proceedings, he had taken the benefit of those proceedings and that having stood by during those earlier proceedings it was now too late for him to make the points he now does. To permit him to reagitate the issues when he had elected not to participate in the earlier proceedings was said to be to permit an abuse of process.
Just what was meant in the present context by "taking the benefit of" or "standing by" was not explained. Mr Amann was not a party to the earlier proceeding. Analogies which it was sought to draw with a party not raising a point until appeal are, therefore, inappropriate [182] . Nor was it clear what conduct of Mr Amann was relied on as amounting to his taking the benefit of the earlier proceeding or as amounting to his standing by, beyond the obvious facts that he may be taken to have known of the earlier proceeding and that he was not a party to it. It may be that cases might be imagined in which doctrines of election or of estoppel by representation might have some application in circumstances having some similarity to the present. (The expressions "taking the benefit of" and "standing by" might be thought to invoke such doctrines.) But Mr Amann made no election between inconsistent rights [183] and made no representation to the respondents that he would make no challenge to the validity of the legislation. All that has happened is that others affected by orders that affect Mr Amann brought a proceeding in which they challenged the jurisdiction of the Court to make those orders and Mr Amann has not, until now, brought his own proceeding. That reveals no election and no basis for holding him to be estopped from now pursuing his claim.
cf Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131 at 139, per Cole JA.
2. cf Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 641-647, per Stephen J.
Nor is his application shown to be an abuse of process. True it is he seeks to obtain a result different from the result of the litigation instituted by others but, standing alone, that demonstrates no abuse of process by him.
Other considerations arise in the case of Mr Gould, for he was a party to the earlier proceeding. But doctrines of res judicata and issue estoppel depend upon there having been a judgment that is final [184] . And here the procedures which led to and followed the appeal to this Court in Gould v Brown were said to take on some significance. By the notice of motion which led to the reservation of questions for the Full Court the applicants sought final relief - orders setting aside the winding up and the examination. The questions that were reserved would, ordinarily, have led as of course to orders dismissing the motion. Had such an order been made, there would have been a final order disposing of the issues that the parties agitated. But no such order having been made, is there a final order, that is, an order of a kind sufficient to lead to a preclusion of the kind for which the liquidator and the Commonwealth contended?
Blair v Curran; Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464 at 531-532, per Dixon J.
The better view may well be that the order of the Full Court was not sufficient to create an issue estoppel against Mr Gould. (No res judicata was created because no cause of action was determined.) That the order does not create an issue estoppel may be said to follow from considerations of the kind dealt with in O'Toole v Charles David Pty Ltd [No 1] [185] . But those considerations may then have to be assessed in light of two further matters. First, there is the established principle concerning appeals to this Court that "an order must finally determine the rights of parties before it will qualify as an order within the meaning of s 73 of the Constitution and s 35 of the Judiciary Act " [186] and secondly, an appeal was brought to this Court in Gould v Brown from the order of the Full Court.
(1991) 171 CLR 232 at 258-265, per Brennan J; at 279-280, per Deane, Gaudron and McHugh JJ.
2. Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421 at 425, per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ.
[162]
Again, however, we do not think it necessary to decide these questions. In so far as Mr Gould seeks certiorari, his applications are out of time (O 55, r 17(1)) and we consider that no reason is shown to extend the time in his case. He has litigated the issues that he seeks to raise by his applications once before, and he lost. If, because of that procedural history, he is estopped, no question of exercising a discretion to extend time arises. If he is not estopped, why should he now be given a procedural indulgence to permit him to reagitate exactly the same issues as he raised in his earlier proceeding and to do so by instituting a different proceeding? His applications for certiorari should be dismissed.
[163]
In so far as Mr Gould seeks prohibition to prevent further steps being taken under the winding up, there is no point in granting relief on his application if that relief is granted to Mr Amann. And if that relief should not be allowed to Mr Amann, Mr Gould can be in no better position.
[164]
Mr Amann's applications for certiorari to quash are also out of time. But because he was not a party to the earlier litigation, he is not affected by the same considerations that touch Mr Gould's application for extension of time. If the time for making Mr Amann's applications for certiorari is not extended, the orders which it is sought to impugn will stand. But if prohibition goes to prohibit further steps under one of those orders - the order for winding up - a curious result would ensue: an order that the company be wound up by the court would stand, but no step could be taken in the Federal Court to give further effect to it. In our view, prohibition should issue to prohibit further steps in the Federal Court under the order for winding up. It was an order made without jurisdiction and further effect should not now be given to it by that Court. Nevertheless, the order for winding up should not be quashed.
[165]
It is more than six years since the winding up order was made. During that time, Mr Brown has acted as liquidator and has incurred expenses in the winding up, including, presumably, costs and expenses associated with this litigation. Of more significance, however, is the consideration that third parties may well have acquired rights that would be affected if the winding up order were now to be quashed. It not having been shown that third parties will not be adversely affected if the winding up order were to be quashed, the discretion to extend the time for applying for certiorari to quash the winding up order should be refused.
[166]
Because nothing remains to be done under the order for examination, there is no purpose in granting prohibition in respect of that order and we would not do so whether on the application of Mr Amann or Mr Gould [187] . Other considerations arise in connection with the application for certiorari and the ancillary orders that we have described earlier. We deal first with the application for ancillary orders: to deliver up for destruction tapes, transcripts and any other note or record of the examination.
R v Hibble; Ex parte Broken Hill Pty Co Ltd (1920) 28 CLR 456
[167]
Whether any use may properly be made of information obtained, or answers given, in the course of the examinations that were conducted pursuant to orders made without jurisdiction may depend upon what use is intended and the circumstances of that use. It is neither possible nor desirable to attempt to give some general answer to the question. And yet that is the premise from which the application for delivery up for destruction proceeds: that there could in no circumstance be any legitimate use of the material obtained. We would refuse the application for these orders. We would, however, grant certiorari to quash the order for examination. Because that order can be made on the application of Mr Amann, we need not consider Mr Gould's position in any detail. It is enough to say that, the issues having been litigated by Mr Gould previously, we would as a matter of discretion, if not preclusion, dismiss his application.
[168]
Accordingly, on the application of Mr Amann there should be an order extending the time for application for certiorari to quash the order for examination and an order absolute in the first instance for certiorari to quash it. The respondents should pay Mr Amann's costs. Mr Gould's applications should be dismissed with costs.
[169]
This matter, too, concerns orders for examination made under a Corporations Law, in this case, the Corporations Law ACT. On 26 June 1998, the Federal Court ordered pursuant to s 597(9) of the Corporations Law ACT that some of those who are applicants in this Court produce documents. On 29 June 1998, summonses for examination were issued by the Federal Court to the other applicants in this Court requiring them to attend before the Federal Court for examination on matters relating to the promotion, formation, management, administration or winding up of White ACT. That company (an ACT company) had been ordered by the Federal Court to be wound up. Those summonses recorded that they were issued pursuant to s 596B of the Corporations Law ACT but the judgments below suggest that it may be that reliance was also had on s 596A.
[170]
On the return of the summonses for examination, the applicants sought an adjournment of proceedings so that notice might be given to Attorneys-General under s 78B of the Judiciary Act and that thereafter they might argue (as part of an application to review the decision to issue the summonses) that the Court had no jurisdiction to issue the summonses. The primary judge (Branson J) refused to adjourn the proceedings and refused to extend the time within which application might be made to review the decision to issue the summonses. From these orders the applicants sought leave to appeal to the Full Court of the Federal Court. That Court (Beaumont, Burchett and Lehane JJ) granted leave to appeal but dismissed the appeal. It held that s 51(1) of the Commonwealth Corporations Act validly conferred jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law ACT and that the Federal Court has power to make orders pursuant to ss 596B and 597(9) where there has been a winding up.
[171]
The applicants seek special leave to appeal from the orders of the Full Court of the Federal Court.
[172]
Section 51(1) of the Commonwealth Corporations Act is set out earlier in these reasons. By that sub-section jurisdiction is conferred on the Federal Court "with respect to civil matters arising under the Corporations Law of the Capital Territory". The Parliament's power to make the Corporations Law ACT may be founded in part in s 51(xx) and perhaps other powers as well, but on any view it may be supported as a law for the government of a Territory made under s 122. For present purposes, however, it is convenient to assume that s 122 is the sole source of power to make the Corporations Law ACT. On that assumption, is s 51(1) a valid conferral of jurisdiction on the Federal Court? In particular, is it a law defining the jurisdiction of a federal court other than the High Court [188] with respect to a matter arising under a law made by the Parliament [189] ? But for the course of decisions in this Court touching the relationship between Ch III and s 122 it could not be suggested that the conferring of jurisdiction on the Federal Court in this case was not valid. But for what is said in some of those decisions, there seems no basis for reading the words "any laws made by the Parliament", when used in s 76(ii), as excluding laws made by the Parliament that find their constitutional support wholly or partly in s 122.
Constitution, s 77(i).
2. Constitution, s 76(ii).
It has rightly been said of the relationship between s 122 and Ch III that [190] :
The baroque complexities and many uncertainties associated with courts and jurisdiction in the Territories have come about partly as a result of conflicting theories and partly by a desire of the judges not to disturb earlier decisions.
Many (if not most) of those difficulties can be traced to R v Bernasconi [191] in which it was held that the exercise of Commonwealth legislative power under s 122 was not restricted by s 80 and that the trial of a person in a Territory on indictment for an offence against a law of the Commonwealth need not be by jury. Of particular difficulty is the broad conclusion of Griffith CJ [192] that "Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories". As the majority said in Boilermakers [193] :
It would have been simple enough to follow the words of s 122 and of ss 71, 73 and 76(ii) and to hold that the courts and laws of a Territory were federal courts and laws made by the Parliament. As s 80 has been interpreted there is no difficulty in avoiding trial by jury where it does apply and otherwise it would only be necessary to confer upon judges of courts of Territories the tenure required by s 72. But an entirely different interpretation has been adopted, one which brings its own difficulties
Not least of the difficulties presented by Bernasconi and the later decision in Porter v The King; Ex parte Yee [194] is to reconcile what was held there with what was held in In re Judiciary and Navigation Acts. The majority in Boilermakers saw the reconciliation as depending upon the view adopted by the majority in Porter "that the exclusive or exhaustive character of the provisions of that chapter [Ch III] describing the judicature and its functions has reference only to the federal system of which the Territories do not form a part" [195] .
1. Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), p 172.
2. (1915) 19 CLR 629.
3. R v Bernasconi (1915) 19 CLR 629 at 635
4. (1956) 94 CLR 254 at 290, per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
5. (1926) 37 CLR 432.
6. Boilermakers (1956) 94 CLR 254 at 290, per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
The general approach in R v Bernasconi , with its emphasis on the separation of the Territories from the Commonwealth and of s 122 from the rest of the Constitution, is fundamentally opposed to the approach of Lamshed v Lake [197] , which attacked this theory and underlined the fact that there is but one Commonwealth and that s 122 was meaningless unless read with other provisions of the Constitution.
But Bernasconi has stood for many years. No application was made in this matter to reopen it and the correctness of the actual decision in the case or its continued application do not now arise. Rather argument focused on other decisions of the Court, notably Porter [198] , Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [199] , Spratt v Hermes [200] and Capital TV and Appliances Pty Ltd v Falconer [201] . In addition, although not available at the time of argument, reference must now be made to the recent decision of the Court in Northern Territory v GPAO [202] .
1. Federal Jurisdiction in Australia, 2nd ed (1978), p 172.
2. (1958) 99 CLR 132.
3. (1926) 37 CLR 432.
4. (1929) 42 CLR 582.
5. (1965) 114 CLR 226.
6. (1971) 125 CLR 591.
7. (1999) 196 CLR 553.
Spratt v Hermes and Capital TV both concerned courts created by the Parliament that had jurisdiction only in a Territory. Porter concerned the jurisdiction of this Court on appeal from the Supreme Court of the Northern Territory, Laristan concerned the original jurisdiction of this Court in relation to matters arising in the seat of government. Only GPAO addresses directly the question presented by a law purporting to confer jurisdiction on a court created by the Parliament (in that case the Family Court) that is a court having jurisdiction throughout Australia. Thus, only GPAO deals directly with the issue that now arises in this case and it determines its outcome. Section 51(1) validly confers jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law ACT.
The applicants contended that the Corporations Law, including Pt 5.9, purported to confer non-judicial as well as judicial power on the Federal Court and was, for that reason, invalid so far as the law purported to confer non-judicial power. Particular reference was made in this respect to s 447A [203] . It was, however, not contended (whether in this Court or in the Full Federal Court) that the power to order the examination of witnesses and to produce documents for the purposes of a winding up and to supervise the conduct of the examination was otherwise than the exercise of a function incidental to the exercise of judicial power. And it is this power to order examinations and produce documents that is now in issue. It is therefore not appropriate to express any view on the validity of conferring jurisdiction on the Federal Court to make orders under s 447A or Pt 5.9 of the Corporations Law except the provisions that are immediately in question. To do so would require consideration of the proper construction of the provisions in question and that can be done satisfactorily only in light of particular facts and circumstances. It was not suggested that, if (as the applicants asserted) some provisions of Pt 5.9 may be open to attack, the provisions that founded the orders now in question could not be read down or severed.
Section 447A provides: "(1) The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company. (2) For example, if the Court is satisfied that the administration of a company should end: (a) because the company is solvent; or (b) because provisions of this Part are being abused; or (c) for some other reason; the Court may order under subsection (1) that the administration is to end. (3) An order may be made subject to conditions. (4) An order may be made on the application of: (a) the company; or (b) a creditor of the company; or (c) in the case of a company under administration - the administrator of the company; or (d) in the case of a company that has executed a deed of company arrangement - the deed's administrator; or (e) the Commission; or (f) any other interested person."
The Full Court was right to dismiss the appeal to that Court. Special leave to appeal should be granted and the appeal treated as instituted and heard instanter but the appeal should be dismissed with costs.
This Court's decision in Gould v Brown [204] was published in February 1998. A challenge to the constitutional validity of cross-vesting legislation was thereby dismissed [205] . The unanimous decision of the judges of the Federal Court of Australia, upholding the validity of the legislation, was not disturbed [206] . Yet within a matter of months fresh challenges to the constitutionality of the legislation were commenced. Within less than a year this Court was hearing again arguments, most of which had been advanced unsuccessfully in Gould [207] .
(1998) 193 CLR 346.
2. The legislation concerned in Gould was the Corporations Act 1989 Cth, s 56 and the Corporations (New South Wales) Act 1990, s 42 and its Victorian equivalent. The provisions of the general cross-vesting legislation are not relevantly different. The terms of the legislation are set out in the reasons of Gummow and Hayne JJ.
3. BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451, per Black CJ, Lockhart and Lindgren JJ.
4. Argument in these proceedings commenced on 1 December 1998.
What has changed? The Australian Constitution stands unaltered, resistant to formal change. No relevant change has been proposed to it. The State constitutions and the laws affording self-government to the mainland Territories [208] are unchanged. The cross-vesting legislation, both in its general manifestation [209] and in the special provisions to support the Corporations Law [210] , remains the same. The principal arguments on each side are substantially unaltered. Few, if any, brilliant flashes of insight were offered to shine new light into dark corners of the Constitution previously overlooked. Indeed, one of the litigants in the present proceedings is Mr Gould himself. He seeks to have this Court revisit the disposition of the earlier proceedings affecting him. The world could see the order of this Court disposing of his previous challenge. But Mr Gould joined with other litigants to claim a second opportunity of persuasion.
Northern Territory (Self-Government) Act 1978 Cth: see Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 Northern Territory v GPAO (1999) 196 CLR 553 Australian Capital Territory (Self-Government) Act 1988 Cth: see Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248
2. Jurisdiction of Courts (Cross-vesting) Act 1987 Cth, s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 NSW, s 4.
3. Corporations Act 1989 Cth, s 56; Corporations (New South Wales) Act 1990, s 42.
Only the membership of the Court has changed in the intervening year. Brennan CJ and Toohey J, who favoured rejection of the earlier challenge, retired and were replaced. A new Full Court has been assembled. It is an old and wise maxim of the law, which courts usually strive to observe, "to keep the scale of justice steady, and not liable to waver with every new judge's opinion" [211] . On the face of things there could hardly be a plainer violation of that maxim. Yet each Justice is obliged to express his or her opinion on the meaning of the Constitution, guided by the past authority of the Court. Each Justice reads the unchanging text with the eyes of his or her generation and experience, sometimes perceiving new requirements or opportunities which predecessors did not see [212] .
Craies, Treatise on Statute Law, 7th ed (1971), cited in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29
2. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267-268 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 199 McGinty v Western Australia (1996) 186 CLR 140 at 230
Gould had the misfortune to be decided by a Court of six Justices [213] . The order disposing of Mr Gould's first challenge was the constitutional consequence of the failure of the challenger in that case to muster a majority in this Court. Only such a majority would have afforded this Court the authority to set aside the orders of the Federal Court from which the appeal had been brought and to substitute different orders of its own. So much flows implicitly from the Constitution [214] . The provisions of the Judiciary Act 1903 Cth [215] do no more than to recognise this fact. They provide machinery for giving effect to its consequence.
It was argued before a Court in which Dawson J did not participate because of his pending retirement.
2. Constitution, s 73; cf Williams v The King [No 2] (1934) 50 CLR 551 at 567
3. s 23(2)(a). See Tasmania v Victoria (1935) 52 CLR 157 at 183-184, per Dixon J; cf Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 387, per Murphy J.
In Gould there was, as there always must be in our system of law, a disposition of contested proceedings and a judicial order signifying that disposition. Such considerations render doubtful the proposition that, unlike every other case, proceedings decided by this Court on the basis of an order resulting from an even division in the opinions of the Justices, create no binding principle of law. The order itself does not provide the precedent. But every such judicial order must be supported by legal reasoning. It is that reasoning which sustains the order and the legal principle derived from the decision. Only this explains why the principle of the case binds other Australian courts. The logic of this conclusion, which the Commonwealth urged, seems compelling [216] .
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 355, per Gibbs J; at 369-370, per Mason J.
It is fruitless to pursue this debate. All other members of the Court are minded to address the substantive constitutional issues. Gould is swept aside as an untroubling obstacle on the path to the attainment of the Court's present conclusions. I will adopt the same approach. But the outcome demonstrates, with a starkness that I cannot remember in any previous decision of this Court, how an "accident of the Court's constitution" [217] can profoundly change, in a very short interval, the outcome of an important constitutional controversy. That controversy is significant to the present parties. But it is also one of great importance for the nine governments and Parliaments of the Australian federation. Their collective voice was heard in this Court, in unique harmony, to urge that the constitutional status quo, achieved after the Court's earlier decision, be maintained.
The foregoing considerations afford a reason for very close scrutiny of the arguments which lead a new majority to orders that will have the consequence of invalidating efficient legislation of great benefit to litigants throughout Australia and to the administration of justice. The rare (if not unique) governmental and legislative unity on the issue over an extended time is an additional reason for hesitating before adopting a view of the Constitution which will stamp on it a construction that will destroy the legislation.
Sometimes the "terms and structure of the Constitution" [218] require an outcome which is unwelcome to governments and Parliaments. Such outcomes may be criticised at the time as based upon an unduly rigid view of the Constitution, only to be vindicated later [219] . Sometimes the suggested rigidity continues to occasion criticism, including from within the Court itself [220] . But because of the oft-demonstrated difficulties of securing formal amendment to the Constitution, and the consequent necessity of adapting its text to rapidly changing national and international circumstances, it is important to approach its meaning with a full appreciation of its function as an enduring instrument of democratic and effective government. The Constitution envisages that the constituent parts of the Commonwealth will operate in general harmony with each other [221] . That is the starting point for a correct elucidation of the meaning of particular provisions.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567
2. Bank of NSW v The Commonwealth (1948) 76 CLR 1and Australian Communist Party v The Commonwealth (1951) 83 CLR 1may be cases in point.
3. See, eg, R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254The principle there stated has been criticised: see R v Joske; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation (1974) 130 CLR 87 at 90, 102.
4. See, eg, R v Humby; Ex parte Rooney (1973) 129 CLR 231, where Gibbs J stated at 240: "the Constitution was certainly not intended to inhibit co-operation between the Commonwealth and the States."
In my respectful view, the point which distinguishes the competing opinions expressed in Gould (now reflected in these proceedings) concerns a conception of the Constitution and of its capacity to adapt to changing times, with needs vastly different from those which existed when the text was written. I differ from the view that the function of the Court in constitutional interpretation is to "give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention" [222] . Once the makers' draft was settled it was submitted to the vote of the electors of Australia. Approved and enacted, it took upon itself its own existence and character as a constitutional charter. As Holmes J remarked in Missouri v Holland [223] :
[The Constitution] called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.
The makers did not intend, nor did they have the power to require, that their wishes and expectations should control us who now live under its protection. The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary governmental needs [224] .
1. McHugh J's reasons at 549.
2. (1920) 252 US 416 at 433, cited in Spratt v Hermes (1965) 114 CLR 226 at 272, per Windeyer J.
3. See Spratt v Hermes (1965) 114 CLR 226 at 272, per Windeyer J.
The Constitution, and in particular Ch III, does not impose Laocoönian constraints on this Court. The proper approach to Ch III, applicable to these proceedings, is that recently stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth [225] . Rigid and impractical outcomes are justified only by "the clearest constitutional language" which "compel them". As their Honours concluded in that case, so do I here. "Nothing in the language of Ch III forces such limited and rigid choices on the parliament." [226] The cross-vesting legislation, in both of its manifestations, is constitutionally valid.
(1999) 197 CLR 510 at 532.
2. Abebe (1999) 197 CLR 510 at 532
The issues, approach and constitutional co-operation
The facts, the issues and the legislation relevant to the proceedings before the Court are set out in the reasons of Gummow and Hayne JJ. I do not repeat them. In disposing of the substance of the three challenges, it would be possible, I suppose, to content myself with a reference to my reasoning in Gould [227] ; for my opinion has not changed. However, in deference to the submissions of the parties, the importance of the matters and the desirability of ensuring that a contrary opinion is recorded in the report of these cases, when Gould is consigned to the annals of legal history, I will repeat some of the main considerations which explain my dissent.
There is no express prohibition of cross-vesting of federal, State and Territory jurisdiction in the Australian Constitution. On the contrary, in so far as the Constitution makes any reference to the subject it does so indirectly and only partially. It provides, in terms, for the making of laws by the federal Parliament "investing any court of a State with federal jurisdiction" [228] . The Constitution thereby rejects a notion of a total divorce between the exercise of the judicial power respectively of the Commonwealth and of the States in separate courts having no connection whatever with the judicial power of the other.
The task of this Court is therefore that of drawing inferences from, and discerning negative implications [229] in, the general language of the Constitution. In particular, the Court must address the provisions in Ch III, read within the document taken as a whole [230] . Also relevant are the purposes which may be attributed to the provisions for the federal Judicature in a Commonwealth in which it is envisaged that there will be States having their own courts (s 77(iii)) and particularly Supreme Courts (s 73(ii)) as well as Territories, the government of which will necessarily involve the existence of courts and the exercise of judicial power (s 122). All such courts are to operate within a nation of continental size, with a relatively small and scattered population which is to be governed, so far as the Constitution permits, with its component parts co-operating in a rational, harmonious and generally efficient way.
The words "negative implication" with respect to Ch III appear in this Court's decision in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 292approved by the Privy Council in Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 545
2. Drawing conclusions of a "negative or exclusive sense" where such a sense must be given to the words "or they have no operation at all": see Marbury v Madison (1803) 5 US 87 at 109, per Marshall CJ.
On the face of things, in such a context, there would not seem to be any reason of constitutional principle or policy to forbid the kind of legislative cooperative scheme between all of the governments and legislatures of the Commonwealth instanced by the two legislative systems of cross-vesting. A negative implication will only arise where it is manifest from the language used in the provisions within Ch III or is logically or practically necessary for the preservation of the integrity and structure of the Judicature envisaged in that Chapter [231] . The governments involved have maintained their support for the legislation under consideration despite many changes of political complexion. Over more than a decade, none of the legislatures has evidenced a desire to withdraw from either of the cross-vesting systems. It is not as if the polities constituting the Australian Commonwealth are, in relation to each other, foreign states. All of them are parts of an integrated federal nation which the Constitution itself summoned forth.
See Australian Capital Television Pty Ltd v The Commonwealth [No 2] (1992) 177 CLR 106 at 135 McGinty v Western Australia (1996) 186 CLR 140 at 168-171, 184-185, 231, 284-286.
In Australia, the courts of the States and Territories are not subordinate in independence, integrity or professional skills to the federal courts provided for in Ch III. There is movement between, and overlap within, their personnel. The Constitution [232] , the legal tradition of the nation and decisions of this Court [233] help to ensure high common standards which dispel any requirement to defend the federal judiciary of this country from State or Territory incursions which might endanger the independence and quality of federal courts. In the Australian federation, there is nothing obviously offensive in the adoption of sensible cooperative arrangements between the courts and the executive governments of the Commonwealth, the States and the Territories to achieve objectives such as those stated in the preambles adopted in common form in the cross-vesting laws. Those preambles include the following statements which purport to explain the enactment of the legislation [234] :
[I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and 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.
Notably s 77(iii).
2. See esp Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
3. See Jurisdiction of Courts (Cross-vesting) Act 1987 Cth; Jurisdiction of Courts (Cross-vesting) Act 1987 NSW is in substantially the same form. The initial adoption of the cross-vesting legislation was prompted by uncertainties as to the jurisdictional limits of federal, State and Territory courts, particularly in the areas of trade practices and family law. See, eg, Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Re F; Ex parte F (1986) 161 CLR 376These uncertainties, coupled with a lack of power in those courts to ensure that all issues arising in the proceedings could be heard and determined by the one court, including by a State court if it were the appropriate court, led to the adoption of the general cross-vesting scheme. See the Minister's Second Reading Speech, Australia, House of Representatives, Parliamentary Debates (Hansard), 22 October 1986, pp 2555-2556.
A legislature cannot, by preambular assertions, recite itself into constitutional power where none exists [235] . Yet the agreement of all the democratically elected legislatures of Australia that a system of cross-vesting is necessary to help avoid inconvenience and expense, and to remove injustices and uncertainties occasioned by jurisdictional conflict, provides at least persuasive evidence that the legislation serves a practical national purpose. Everyday experience in the courts would probably establish that fact in any case [236] . Some lawyers enjoy the intricate intellectual problems which can arise where there is a conflict or disparity of jurisdiction. Occasionally, a party may take advantage of them. But few ordinary citizens see their merits. Most parties discern no beauty or value in conflicts of this kind. If this amounts to an "unthinking resort to" slogans about "arid jurisdictional disputes" [237] , I must bear that label. However, I also invite attention to the complex and disputable legal points (about which differences persist) that will be necessary to resolve some of these cases once the cross-vesting laws are struck down. They illustrate what the future now holds for Australian courts and those who use them.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 190-193, 205, 221, 244, 263, 278-279.
2. See, eg, National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 584-585See also Young, "Current Issues - Cross-vesting", Australian Law Journal, vol 73 (1999) 310.
3. See reasons of Gummow and Hayne JJ at 580.
The need for a system such as the cross-vesting legislation within the Australian Commonwealth can therefore scarcely be doubted. Statistical and other material was provided to this Court about the use made of the legislation challenged in these proceedings. These demonstrate, in part, the use being made of the system [238] . Yet such statistics, significant as they are, seriously understate the utilisation of the legislation. They concentrate on matters transferred to and from the jurisdiction of the Federal Court of Australia. They do not quantify other inter-jurisdictional transfers. They do not measure the matters commenced in a jurisdiction which, but for the cross-vesting legislation, would have been impermissible.
cf Moloney and McMaster, Cross-Vesting of Jurisdiction - A Review of the Operation of the National Scheme (1992), Appendix 1. The authors conclude that the scheme to the time of their review had operated "effectively and efficiently": see at p 147. It had not resulted in any untoward or improper distortion of the administration of justice throughout the nation. Such problems as had occurred were manageable and remediable. An important "subtle" benefit noted by the authors was the assistance afforded by the legislation in breaking down parochial tendencies in the judiciary. See also Federal Court of Australia, Annual Report, 1996-1997, p 42.
What, then, are said to be the "compelling arguments" derived from the "clearest constitutional language" which warrant the conclusion that the Australian Constitution forbids both systems of cross-vesting legislation, and now requires that, despite their great utility, they be terminated? The challengers before this Court relied in these cases (as had earlier been done in Gould ) on two basic propositions. Each was said to follow not from the words but from negative implications in Ch III of the Australian Constitution: 1. that it is not open to a State Parliament (or legislature of a self-governing Territory) to confer jurisdiction upon a federal court; and 2. that it is not within the legislative power of the federal Parliament to consent to the conferral of such State (and Territory) jurisdiction on a federal court.
For reasons which I will explain in disposing of the proceedings in Spinks v Prentice , it is unnecessary to deal with the issue concerning the power of the Territory legislatures to enact legislation conferring "Territory jurisdiction" upon a federal court. I will not, therefore, decide that issue. Instead, I will concentrate, as I did in Gould , on the power of a State Parliament to confer State jurisdiction on such a court and the power of the federal Parliament to consent to the conferral of such State jurisdiction.
Implied exclusion of the conferral of State jurisdiction
Leave aside for a moment the suggested problems presented by Ch III of the Constitution. In other respects it is established that a legislature of one polity within the Commonwealth may vest non-judicial powers in an institution created by the legislature of another polity within the Commonwealth [239] . Where this involves the vesting of State power in a tribunal created by co-operative legislation of both the Commonwealth and a State, it is necessary to have the consent of federal law for State powers to be reposed in such tribunal. But, in a decision the correctness of which was not challenged in these proceedings, this Court held that the vesting of State arbitral powers in a quasi-judicial federal tribunal was constitutionally valid [240] . Indeed it was said to be an example of the kind of co-operation on the part of the Commonwealth and the States which would permit them together to achieve objects "that neither alone could achieve" [241] .
R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 579-580cf Gould v Brown (1998) 193 CLR 346 at 381-382, per Brennan CJ and Toohey J.
2. R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535See also Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-131
3. R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 580, citing Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774See also Gould v Brown (1998) 193 CLR 346 at 382
There is therefore nothing inherent in the Australian Constitution which forbids the co-operative sharing and combination of governmental powers within the federation. On the contrary, the constitutional text expressly contemplates various forms of inter-governmental co-operation [242] and co-operation between the Parliaments of the Commonwealth and of the States [243] . This, then, is the constitutional setting in which the suggested negative implications of Ch III must be evaluated. If some forms of inter-governmental and inter-legislative co-operation are permissible, and have been achieved, the question is immediately posed as to why, within the Australian judiciary, similar inter-jurisdictional co-operation must be regarded as totally forbidden. This is just another way of saying, once again, that in the context of the Australian Constitution, very clear language in Ch III would be required to produce such an unyielding and rigid outcome.
See, eg, Constitution, s 51(xxxiii).
2. See, eg, Constitution, s 51(xxxvii).
The first step of the challengers' argument latches onto the express provision in s 77(iii) of the Constitution. By that paragraph the federal Parliament may make laws "investing any court of a State with federal jurisdiction". By an appeal to the expressio unius principle of construction, it is claimed that the Australian Constitution envisages, in the case of the judiciary, a one-way street of inter-jurisdictional conferral of judicial power. It would only flow from the Commonwealth to a State. It could not flow in the opposite direction. This argument is completely unconvincing. This probably explains why the challengers in these proceedings advanced it in muted tones.
The expressio unius rule must always be used with caution [244] . It is especially perilous in construing a constitution written in sparse language, such as ours. There are many reasons why s 77(iii) provides as it does. Most of them are historical [245] . The State (formerly colonial) courts were well established at the time of federation. There were no federal courts at that time. Indeed, there were few federal courts in Australia until the 1970s. Until the 1980s their jurisdiction was very limited. The provision of a power compulsorily to invest the established State courts with federal jurisdiction was therefore an urgent necessity. It was so if the new Commonwealth, with its limited resources, were to avoid the burdensome obligation of creating immediately a parallel federal judiciary such as had been established in the United States of America. In that country, the uneven quality and varying methods of appointment of the judiciary of the States had resulted in the growth of a substantial and separate federal judiciary. By way of contrast, the Australian colonial (and later State) judiciaries exhibited uniformly high standards of integrity and ability rendering the "autochthonous expedient" [246] particularly suitable to Australia's initial federal judicial arrangements.
Russell v Russell (1976) 134 CLR 495 at 539 Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94 Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250 PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 311 Colquhoun v Brooks (1888) 21 QBD 52 at 65
2. Gould v Brown (1998) 193 CLR 346 at 384-385, 492-493; cf Mason and Crawford, "The Cross-vesting Scheme", Australian Law Journal, vol 62 (1988) 328, at p 334.
3. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268
Far from giving rise to an implication that a reverse conferral of State jurisdiction on federal courts is impermissible, the history of almost a century during which federal jurisdiction has frequently been invested by federal laws in the courts of the States established a constitutional environment in which reciprocal laws of the States were both a natural and permissible development. The lack of express provision in Ch III for that to happen can also be explained by reference to the text. Chapter III is concerned with the judicial power of the Commonwealth. It is addressed, substantially, to the establishment of this Court and provision for the creation of other federal courts, exercising the jurisdiction there specified. Although the continued existence of the courts of the States, and specifically the Supreme Courts, is clearly contemplated by Ch III, provision for them, and for the exercise of the judicial power of the States, is properly reserved to the constitutions of each State. The continued existence of the constitutions of the States is provided for in s 106 of the Australian Constitution. As to the powers of the Parliaments of the States to enact laws with respect to the conferral of State jurisdiction, that is provided by s 107 of the Constitution. The failure to deal with that power in Ch III is therefore no indication of a constitutional prohibition. It is simply a reflection of the respective functions of the federal and State constitutions in providing separately for the making of laws (relevantly) for conferring on the courts of one part of the Commonwealth a portion of the judicial power of another part of the Commonwealth.
Then it is said that Ch III of the Constitution repels any such attempted conferral of State jurisdiction because it provides exhaustively for the jurisdiction which may lawfully be conferred upon this Court and upon other federal courts created by the Parliament. In the context of the constitutional developments which have occurred since the text of the Australian Constitution was adopted (including the termination of appeals to the Privy Council which now renders this Court the ultimate constitutional and appellate court for Australia) [247] , different considerations would arise in relation to any attempt by State law to confer jurisdiction on this Court. The High Court of Australia traces its origin to the Constitution itself. It has distinct constitutional functions which extend beyond those that exist in the case of other federal courts. In the case of this Court, there may indeed be negative implications in Ch III which would prevent a purported conferral upon it of State jurisdiction [248] . It is unnecessary to explore this question. No such conferral of jurisdiction is attempted by any of the cross-vesting laws. As it is unlikely that the federal Parliament would ever purport to consent to such conferral of jurisdiction, it is pointless to explore the theoretical possibilities further.
Privy Council (Limitation of Appeals) Act 1968 Cth; Privy Council (Appeals from the High Court) Act 1975 Cth; Australia Acts 1986; cf Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464
2. Gould v Brown (1998) 193 CLR 346 at 383, 498. The Parliament cannot consent to the conferral of jurisdiction on this Court outside that expressly permitted by Ch III of the Constitution because this Court is not created by a law of the Parliament but by the Constitution itself: cf Spratt v Hermes (1965) 114 CLR 226 at 277
However, in the case of the courts created by the federal Parliament the position is different. It is not self-evident why it should not be open to the legislatures of the States to make provision with respect to the disposition of their own judicial powers by conferring part of the jurisdiction to exercise those powers upon federal courts, operating as they now do throughout Australia. In colonial times, part of the judicial power of particular colonies was commonly deployed by Imperial legislation or orders in council to inter-colonial judicial bodies, generally of an appellate character [249] . Originally, that could only be done by, or under, laws made by the Imperial Parliament [250] . With the advent of federation, the State Parliaments acquired plenary legislative powers subject only to those powers conferred by the Australian Constitution upon the federal Parliament or withdrawn from the Parliament of a State [251] or put beyond the power of a State Parliament by reason of continuing Imperial legislation such as the Colonial Laws Validity Act 1865 Imp. By the Australia Acts 1986 [252] , any remaining Imperial legislative restrictions were removed. Accordingly, subject only to the Australian Constitution, before any of the cross-vesting legislation was enacted, the State Parliaments of Australia enjoyed as full a power to legislate, including with extraterritorial operation, as had been enjoyed at the time of federation by the United Kingdom Parliament itself. In such a legislative setting, the suggestion that a Parliament of an Australian State could not enact a law to provide for the exercise of a part of the judicial power under its control by an established State or federal court within Australia is quite unconvincing. Whatever may have been the position prior to the Australia Acts, all remaining constitutional inhibitions and obstacles (except any provided by the Australian Constitution) were by then removed.
Gould v Brown (1998) 193 CLR 346 at 479-480
2. Such as the British Settlements Act 1887 Imp, ss 2, 5. See discussion in The Commonwealth v Queensland (1975) 134 CLR 298 at 311-312 Gould v Brown (1998) 193 CLR 346 at 376-377
3. Constitution, s 107. See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-10 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65, 71-72; Gould v Brown (1998) 193 CLR 346 at 373
4. See, eg, Australia Act 1986 Cth, ss 2, 3.
I accept that observations may be found in the opinions written in this Court which, on their face, appear to stand against the foregoing propositions [253] . I acknowledge that statements exist which suggest that Ch III is an exhaustive and exclusive statement of the judicial power that may be conferred upon a federal court from whatever source. However, such statements were not essential to the decisions in question. For example, the issue addressed in In re Judiciary and Navigation Acts [254] was "[w]hat, then, are the limits of the judicial power of the Commonwealth?" It was in answering that question that this Court expressed the view that nothing in Ch III of the Constitution supported a conclusion that the Parliament could confer power or jurisdiction on the High Court to determine abstract questions of law [255] . None of the cases in which the cited restrictions were uttered was addressed to the present problem. All were written in earlier times when the constitutional setting was quite different. They occurred before the creation of significant federal courts with substantial and growing jurisdiction which presents serious problems of conflict and overlap that now require solution. It is erroneous to invoke them as if they provide answers to a different constitutional problem at the other end of the century [256] .
See esp In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268
2. (1921) 29 CLR 257 at 264.
3. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.
4. Spratt v Hermes (1965) 114 CLR 226 at 240, per Barwick CJ; at 255, per Kitto J.
Moreover, the practice of the federal Parliament [257] and the conduct of this Court [258] contradict any rigid view about the conferral upon federal courts (indeed upon this Court) of jurisdiction and functions standing outside those expressly stated within Ch III of the Constitution. In particular, no specific mention is made in Ch III of the facility of appeals to this Court from the courts of the Territories. Yet statutory provision is made for such appeals. They are regularly heard and determined [259] . It is unthinkable that they should be forbidden as outside the Constitution. Similarly, no mention is made in Ch III of appeals from the courts of foreign countries. Yet such appeals have been brought and this Court has exercised the jurisdiction conferred on it, apparently appellate in character, from the courts of Nauru [260] . There are other illustrations which reinforce the conclusion that rigidity has not been our constitutional practice. We should not make it so now.
Various examples of the conferral of jurisdiction upon courts established by or under Ch III of the Australian Constitution may be instanced. See, eg, the conferral of jurisdiction as a Colonial Court of Admiralty upon the High Court by the Colonial Courts of Admiralty Act 1890 Imp and the jurisdiction to hear appeals from decisions of the courts of Nauru under the Nauru (High Court Appeals) Act 1976 Cth. See also the exercise by this Court and other federal courts of original and appellate jurisdiction with respect to the Territories: Gould v Brown (1998) 193 CLR 346 at 380, per Brennan CJ and Toohey J; at 493-494. Other instances may include the creation of courts martial under the defence power: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 R v Cox; Ex parte Smith (1945) 71 CLR 1 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 Re Nolan; Ex parte Young (1991) 172 CLR 460and Re Tyler; Ex parte Foley (1994) 181 CLR 18the appointment of federal judges to non-judicial functions as personae designatae, approved in Hilton v Wells (1985) 157 CLR 57 Jones v The Commonwealth (1987) 61 ALJR 34871 ALR 497 and Grollo v Palmer (1995) 184 CLR 348and the purported constitution of the High Court as a Court of Disputed Returns: see Commonwealth Electoral Act 1918 Cth, s 354; cf Walker, "Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional?", University of New South Wales Law Journal, vol 20 (1997) 257.
2. For example, acceptance of jurisdiction under the Judiciary Act, s 30B (inserted by the Judiciary Act 1927 Cth, s 4) as a trial court for the Australian Capital Territory. See R v Porter (1933) 55 CLR 182
3. Porter v The King; Ex parte Yee (1926) 37 CLR 432 Jolley v Mainka (1933) 49 CLR 242
4. Two appeals from Nauruan courts have been heard and determined by this Court. See Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29103 ALR 595. The only suggested explanation by the challengers for this apparent exception was that the negative implications existing in Ch III of the Constitution applied "within the federal system" and thus had no application outside that system, of which Nauru and the Australian Territories were said to be examples.
There is an added reason for rejecting a construction of Ch III so as to forbid the conferral on federal courts of jurisdiction granted by a legislature other than the federal Parliament. It is one which I had not fully appreciated when Gould was decided. In that decision, I treated at face value arguments proposing that the power of the federal Parliament to consent to the exercise by courts created by it of jurisdiction conferred upon them by State legislatures could be sustained (but had not been in that case) under the provisions of s 51(xxxviii) of the Australian Constitution [261] . However, if, as the challengers assert, Ch III forbids the conferral of jurisdiction on federal courts by any legislature other than the federal Parliament, s 51(xxxviii) would seem to have no useful operation in such a case. That paragraph appears in s 51 of the Constitution. That section confers legislative powers "subject to this Constitution". That phrase, therefore, includes the restriction: subject to the requirements of Ch III. If within the four corners of Ch III sufficient implied prohibitions may be found to repel any attempted conferral of jurisdiction on federal courts by a legislature other than the federal Parliament, no amount of inter-governmental or inter-parliamentary concurrence, as envisaged by s 51(xxxviii), would seem capable of overcoming that prohibition [262] . The same would hold true of references of power by the Parliaments of the States under s 51(xxxvii).
That paragraph provides: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia." See Gould v Brown (1998) 193 CLR 346 at 487-489
2. cf Moshinsky, "Gould v Brown - Death Knell of the Cross-vesting Scheme?", Public Law Review, vol 9 (1998) 152, at p 155.
If the arguments of the challengers are accepted, the foregoing would appear to consign those seeking to restore the benefits of cross-vesting legislation, enjoyed these past dozen years, to the highly problematic and expensive task of proposing and securing a formal amendment to the Australian Constitution. The inconvenience of such a rigid construction of Ch III is then shown in sharp relief. The amendment would be necessary not to delete offending words nor to overcome an expressly stated prohibition. It would be needed to reverse an implication which this Court (in my view needlessly) reads into the Chapter. It would require the most compelling arguments of constitutional authority, principle and policy to persuade me that the combined Parliaments of the Commonwealth of Australia cannot, after nearly a century of federation, do together (with all the travail that such a course involves) what the Imperial Parliament might readily have done in 1901 on a relatively straight-forward machinery matter of this kind.
During argument, mention was made of likely future developments consequent upon regional and global arrangements affecting Australia. The time may come when, for reasons acceptable to Australia's governments and Parliaments, jurisdiction might be conferred on Australian courts, federal and State, out of the judicial power of a foreign country. Already, in the case of New Zealand, reciprocal legislation has been enacted for so-called trans-Tasman market proceedings [263] . Such legislation may be seen as an early herald of inter-jurisdictional and regional co-operation which is likely to expand in the decades ahead to the advantage of all concerned. It provides a further reason why this Court should refrain, at least so far as the federal judiciary of Australia is concerned, from adopting a rigid construction of Ch III which would forbid such developments.
Federal Court of Australia Act 1976 Cth, Pt IIIA.
Whatever arguments exist in the case of the conferral of jurisdiction upon federal courts by the legislatures of foreign countries (even those as close and similar to our own as New Zealand), in the case of the legislatures of the States of Australia entirely different considerations arise. Those who might hesitate at the possibility of the conferral upon a federal court in Australia of jurisdiction conferred by the legislature of a foreign country with the consent of the federal Parliament would not, I think, have any hesitation about the legitimacy and appropriateness of the conferral of jurisdiction by a State legislature acting within its powers. No apparent offence is done to the design and purpose of the Australian Constitution. No affront is done to established civil or economic rights. On the contrary, what is then achieved is precisely the co-operation for the removal of inconvenient impediments to good government which the Australian Constitution fosters rather than forbids [264] .
cf Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 774 R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 240Such co-operation is a "positive objective" of the Constitution: see R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589, per Deane J.
For these reasons I would conclude that nothing in Ch III of the Australian Constitution, and no limits required by the constitutions of the Australian States, forbid the conferral on a federal court by the Parliament of a State of State jurisdiction of the kind envisaged in the cross-vesting legislation. It is unnecessary and undesirable to read such restrictions into the constitutional text. The first basic proposition of the challengers therefore fails.
This conclusion leaves the second suggested hurdle. This is the supposed lack of any constitutional basis for the provision of consent by the federal Parliament to the exercise by the courts which it has created of jurisdiction other than that which Ch III contemplates. This argument was put rhetorically in the following way: If the federal Parliament cannot itself confer State jurisdiction upon a federal court, how can it enjoy the legislative power to consent to a State Parliament doing so?
It was generally accepted by all parties that the terms of ss 75, 76 and 77 of the Australian Constitution exclude any direct purported conferral of State jurisdiction on a federal court by a law made by the federal Parliament. Yet the enactment of a law providing the consent of the federal Parliament is clearly necessary. Otherwise, any law of another polity purporting to confer jurisdiction upon a federal court would run into the insurmountable obstacle that the jurisdiction of such a federal court would be taken to be only that conferred upon it by the legislature of the polity creating it, namely the federal Parliament [265] . Because the conferral of a court's jurisdiction contemplates the exercise of compulsive powers and has implications for the expenditure of funds and the deployment of judges, it is inevitable that consent of the federal Parliament to the use of federal courts would be required [266] . But this leaves to be answered the question of where the federal Parliament finds the legislative power to give such consent.
R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 562-563cf Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 127-128
2. It is incorrect to describe the cross-vesting legislation, as the challengers did, as having the effect of "conscripting" federal courts to exercise State jurisdiction. The consent of the Commonwealth is a condition precedent to the exercise of such jurisdiction. See Gould v Brown (1998) 193 CLR 346 at 381-382, per Brennan CJ and Toohey J.
The challengers contended that, as the federal Parliament could not itself confer jurisdiction, by necessary implication it could not consent to the conferral of jurisdiction by a State Parliament. If it could do so, this would permit, indirectly, the federal Parliament's acting in relation to the federal courts in a manner which was incompatible with the "fundamental and carefully defined role" [267] or the carefully marked out territory reserved to the federal Judicature by Ch III of the Constitution.
Gould v Brown (1998) 193 CLR 346 at 421, per McHugh J.
I do not find these arguments persuasive. Chapter III speaks to what the federal Parliament can do in respect of the exercise of "[t]he judicial power of the Commonwealth" [268] . It is silent with respect to the conferral on federal courts of the judicial power of another polity, including that of a State of the Commonwealth. Its provisions simply do not address that issue. The words of constitutional grant in ss 75, 76 and 77 should not be read narrowly so as to expel other possibilities. Yet this still leaves to be identified the foundation for the legislative power of the federal Parliament to give its consent. Because that Parliament is a legislature of limited powers, it requires a constitutional source of power to sustain the validity of any law made by it.
Such a source is readily found in this instance. It lies in the combined power which the Australian Constitution affords to the federal Parliament to create federal courts (other than this Court which is created by the Constitution (s 71)) and the express (s 51(xxxix)) and implied power [269] to enact laws incidental to those subjects upon which legislative power has been expressly conferred.
Burton v Honan (1952) 86 CLR 169 at 177 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27
The provisions of s 51(xxxix) of the Australian Constitution are addressed, in terms, to "matters incidental to the execution of any power vested by this Constitution in the Federal Judicature ". In Burton v Honan [270] , Dixon CJ, for the Court, said of this paragraph:
[E]verything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter But it has appeared to me that par (xxxix) of s 51 is related not so much to matters incidental to the subjects placed under the legislative power of the Commonwealth but rather to matters which arise in the execution of the various powers reposed in the Legislature, the Judiciary and the Executive.
1. (1952) 86 CLR 169 at 177-178.
These two expressions of the scope of the legislative power of the federal Parliament are directly applicable to the present proceedings. Once the federal Parliament created federal courts with substantial jurisdiction, this was bound to result in conflicts and overlap of jurisdiction with State courts. The problems presented in the present cases illustrate how this was bound to occur and often does. The need for legislation such as cross-vesting of jurisdiction and transfer of cases was therefore bound to arise. So it quickly proved. Other circumstances made it desirable that such legislation should extend to the courts of the States themselves and as between those courts and the courts of the Territories. The very creation of a federal Judicature carried with it implied powers on the part of the federal Parliament to make laws which would advance their effectiveness as courts and reduce or eliminate the meritless jurisdictional conflicts which would otherwise bedevil their operations.
Cross-vesting legislation, with the facility of transfer from and to federal courts, was clearly necessary for the reasonable fulfilment of the legislative power which had given birth to the federal courts [271] . Additionally, the efficient execution of the powers of the federal Judicature is advanced by the adoption of sensible arrangements designed to remove the costs and other burdens, sometimes intolerable and usually inimical to the attainment of the objectives of that Judicature. Such burdens include the commencement of proceedings in an inappropriate Australian court or the commencement of connected litigation in another Australian court which should conveniently be heard and determined in the one court, including, where appropriate, a federal court.
cf State Chamber of Commerce and Industry v The Commonwealth (the Second Fringe Benefits Tax Case) (1987) 163 CLR 329 at 357-358.
The scope of the implied powers afforded to the federal Parliament by the Australian Constitution has never been narrowly confined [272] . It would be inappropriate to do so now, given the nature of the Constitution as an instrument of government and the terms in which the grants of legislative power are expressed [273] . This approach is no less applicable to the implications inherent in the creation of the federal Judicature within Ch III of the Constitution than to the enactment of laws with respect to the identified heads of power granted to the Parliament in Ch I of the Constitution (esp ss 51, 52).
cf Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 365 Baxter v Ah Way (1909) 8 CLR 626 at 637 O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 597-598
2. Le Mesurier v Connor (1929) 42 CLR 481 at 497 R v Spicer; Ex parte Australian Builders Labourers' Federation (1957) 100 CLR 277 at 287, per Dixon CJ; Davis v The Commonwealth (1988) 166 CLR 79 at 95
Having created a federal Judicature, the Constitution implies that the federal Parliament will have full powers to ensure that such Judicature performs its functions in all matters incidental to its purposes, including in matters incidental to the execution of the judicial power [274] . It is not within such incidental powers for the federal Parliament to confer a distinct jurisdiction upon a federal court additional to that for which the Constitution specifically and expressly provides [275] . But it is within that power for the Parliament to consent to the conferral of jurisdiction by the legislature of another polity to which the judicial power in question belongs. At least, it is within the incidental power where that other polity is a State of the Australian Commonwealth [276] . The source of the judicial power in question thus lies outside the grant of judicial power to the federal Parliament. But the consent to its exercise is reasonably incidental to that grant. It is reasonably necessary and convenient for, and conducive to, the proper performance by the federal Judicature of its functions as such [277] .
As provided by s 71.
2. Constitution, ss 75, 76, 77. See Willocks v Anderson (1971) 124 CLR 293 at 299 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 535 Gould v Brown (1998) 193 CLR 346 at 459-460, per Gummow J.
3. Gould v Brown (1998) 193 CLR 346 at 497-498See also at 385-386, per Brennan CJ and Toohey J.
4. cf Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 at 87 Fencott v Muller (1983) 152 CLR 570 at 609 Davis v The Commonwealth (1988) 166 CLR 79 at 111-112 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27, per Mason CJ, adopted by Brennan J in Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 179
An additional and connected source of constitutional authority arises from the implied nationhood power. That power has been repeatedly recognised in decisions of this Court as deriving from Australia's very existence and character as a sovereign nation. It extends not only to Australia's external activities, but also internally [278] . It is a source of power reflective of the unique position occupied by the Commonwealth within Australia's federal polity. In the past that power has been elaborated in connection with the Legislature and the Executive Government of the Commonwealth. But there is no reason of principle why it should not also apply in the case of the Judicature.
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 362-364, per Barwick CJ; at 378, per Gibbs J; at 397-398, per Mason J; at 412-413, per Jacobs J; New South Wales v The Commonwealth (1975) 135 CLR 337 at 373-374, per Barwick CJ; at 470, per Mason J; at 498, per Jacobs J; at 505, per Murphy J; The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 252, per Deane J; Davis v The Commonwealth (1988) 166 CLR 79 at 92-94, per Mason CJ, Deane and Gaudron JJ. The notion of an implied nationhood power received its earliest expression in those cases dealing with the implied power of national self-preservation: see, eg, Burns v Ransley (1949) 79 CLR 101 at 116 R v Sharkey (1949) 79 CLR 121 at 148-149 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-189
In Victoria v The Commonwealth and Hayden [279] , Mason J described the implied nationhood power in the following terms:
[T]he Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity [T]here is to be deduced from the existence and character of the Commonwealth as a national government a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.
Similarly, Jacobs J wrote [280] :
[T]he purposes of the Commonwealth may not only fall within a subject matter of general or particular power prescribed in the Constitution but may also be other purposes which now adhere fully to Australia as a nation The growth of national identity results in a corresponding growth in the area of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for coordination and integration of ways and means of planning for that complexity and reflecting those values.
1. (1975) 134 CLR 338 at 397.
2. Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412
Federal legislation providing consent to the vesting of State jurisdiction in federal courts falls squarely within the purposes envisaged by the implied nationhood power as it relates to the Judicature. The legislation possesses an "Australian rather than a local flavour". It seeks to facilitate national co-operation and "coordination" in response to the "complexity of a modern national society" [281] . The Commonwealth, in its relationship with the States and Territories, is in a unique position to respond to the issues arising under the establishment of a national system of jurisdiction-sharing. It has done so for high national purposes.
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412, per Jacobs J.
Obviously, the implied nationhood power is strictly limited in its scope. It would be inconsistent with the distribution of powers provided by the Constitution were the nationhood power to be given an ambit that trespassed impermissibly upon the powers of the States. That would effect a disturbance of the federal balance [282] . A characterisation of legislative purposes as "national" is not sufficient to attract the support of the nationhood power if those purposes fall within areas of law-making belonging to the States [283] . But the cross-vesting legislation of the Commonwealth, in so far as it gives consent to the vesting of State jurisdiction in federal courts, cannot be characterised in that way. It is legislation which every Australian State and Territory supported in this Court. In no way does it encroach impermissibly upon the legislative domain of the States or subvert the federal nature of the Constitution. On the contrary, it is clearly intended to support the legislative initiatives which the States have themselves taken. In the jurisprudence of this Court, the implied nationhood power is not limited to flags and symbols. It extends to co-operative national activities that are compatible with the Constitution and which reflect the modern needs of a dynamic and democratic federal polity [284] .
cf Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364, per Barwick CJ; at 378, per Gibbs J; at 398, per Mason J.
2. Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 364, per Barwick CJ; at 378, per Gibbs J; at 398, per Mason J. In The Commonwealth v Tasmania (1983) 158 CLR 1 at 252, Deane J held that the implied nationhood power was limited in scope by reference to the federal nature of the Constitution and accordingly "confined within areas in which there is no real competition with the States".
3. Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 412, per Jacobs J; R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 560, per Mason J; The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 252, per Deane J. See also Byers, "Commentaries" in Evans (ed), Labor and the Constitution 1972-1975 (1977), pp 68-71; Rumble, "The Commonwealth/State Co-operative Basis for the Australian Wheat Board and the National Companies and Securities Commission: Some Constitutional Issues", Adelaide Law Review, vol 7 (1981) 348, at pp 370-375.
This conclusion does not employ "convenience" as a criterion of constitutional validity rather than legal analysis [285] . Analysis does not become less legal because it is uncongenial. The incidental power under the Constitution affords the legal answer to the question concerning the legislative power to sustain the federal part of the cross-vesting scheme. The incidental power was fully argued in these proceedings. And one aspect of the incidental power is the implied nationhood power. What can be more conducive to the national society of Australia as envisaged by the Constitution than the provision of legislative consent to a scheme that ensures justice, efficiency and clarity in the nation's court system? This is something at the very heart of the nation's existence and of its identity as such. Provided no other impediment exists, the Parliament of the Commonwealth is empowered to act as it has.
A number of subordinate arguments were deployed in resistance to the conclusion that the federal Parliament possessed the constitutional power to consent to the vesting of State jurisdiction in federal courts. I will mention them although none has merit. Thus, it was submitted that the outcome of the cross-vesting legislation would be to denude the State courts of their jurisdiction in civil cases leaving them, effectively, only with criminal jurisdiction. The federal courts, with their express, accrued and transferred jurisdiction, would continue to expand to the destruction of the judicial arrangements envisaged by the Constitution. I regard such arguments as fanciful. They are certainly not borne out by the operation of the cross-vesting legislation within the Australian judiciary to this time. If there is a danger to the continued existence of the State judiciary (one which falls far short of the alarms sounded during argument) it lies in the persistent expansion of the accrued jurisdiction of federal courts. This expansion may depend (as the proceedings involving Mr Wakim illustrate) upon considerations much more disputable, contentious and uncertain than the provisions of the cross-vesting legislation.
Then it was argued that cross-vesting legislation could result in the conferral of jurisdiction on federal courts inconsistent with the nature of federal jurisdiction yet compatible with the wider non-federal jurisdiction which may be exercised by State courts. This argument is also without substance [286] . The only jurisdiction which might be conferred on a federal court is that which is consistent with its character as a federal court [287] . Where jurisdiction is conferred, the court or body upon which it is conferred must be accepted as it is, unless its powers and functions are lawfully altered. No legislature in Australia may alter the constitutional character of a federal court. No legislature other than the federal Parliament can alter the other powers and functions of federal courts, including those dealing with appeals from such courts [288] . Accordingly, if the legislature of a State purported to confer upon a federal court jurisdiction incompatible with the constitutional character of that court, or inconsistent with the functions accorded to that court by the federal Parliament, any such endeavour would have no constitutional effect. Notwithstanding the submissions of New South Wales and South Australia to the contrary [289] , I adhere to the view which I expressed in Gould . The only jurisdiction which could be conferred on a federal court by or under State law is that which is consistent with the exercise by it of judicial power as that term is understood in the context of Ch III [290] .
See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 35cf Davies and Cody v The King (1937) 57 CLR 170 at 172
2. Gould v Brown (1998) 193 CLR 346 at 389, per Brennan CJ and Toohey J; at 500.
3. In Gould v Brown reference was made to this problem. See Gould v Brown (1998) 193 CLR 346 at 496
4. Referring by analogy to Lorenzo v Carey (1921) 29 CLR 243 at 253
5. Gould v Brown (1998) 193 CLR 346 at 497See also at 385-386, per Brennan CJ and Toohey J; cf Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554
[228]
It was next submitted that conflicts of jurisdiction are inherent in any federal system of government. They are implicit in the existence of federal, State and Territory courts with jurisdiction which overlaps and intersects. It is true that such conflicts are a feature of the federal system of government which the Constitution establishes. But that fact says nothing about the constitutional validity of rational co-operative endeavours designed to reduce needless, and to eliminate avoidable, conflicts of this kind. Such conflicts are not a cause for rejoicing. Every federal country develops rules to minimise them, so far as can validly be done.
[229]
The provision of detailed legislative rules, in the form of the cross-vesting legislation, is a surer and sounder solution to the problems of conflict and multiplicity of jurisdiction (and one more in harmony with a co-operating federation) than the continued accretion to the jurisdiction of federal courts by judicial elaboration of the Constitution. The enlargement of the accrued jurisdiction of federal courts, secured by reading into the word "matter" implications which seem far from the constitutional purpose, is a significantly more artificial and less flexible way to address the problem than that chosen in the cross-vesting legislation. Far from undermining the continued existence of the separate systems of federal and State courts envisaged by the Australian Constitution, the cross-vesting legislation assumes and sustains that existence. It provides machinery for appropriate commencement and transfer of proceedings within the judiciary of Australia. It rejects artificiality for rationality and inter-jurisdictional co-operation. The alternative to the open-ended tests for accrued jurisdiction (discussed in the reasons of other members of this Court) relying on disputable notions of "a single controversy", the variable criterion of judicial "impression", and a one-way traffic to federal courts, is a rational procedure: cheap, just, equal and clear in its operation. In my view, the cross-vesting legislation is more in keeping with the operation of Ch III, properly understood, than the rigid construction of the Constitution which would strike down the legislation as constitutionally impermissible and turn to judicial invention and sophistry to overcome the problems which are thereby created. The second basic argument for the challengers also fails.
[230]
The foregoing conclusions lead me to a result on the main issues identical to that which I reached in Gould . There is no constitutional defect in the statutory provisions for cross-vesting considered in these proceedings. Each of the statutes, federal and State, took effect according to its terms. Each validly operated to confer on the Federal Court of Australia the jurisdiction which that Court proceeded to exercise.
[231]
Having reached this conclusion, it is unnecessary for me to explore alternative arguments whereby, to meet the possible loss of the jurisdiction conferred under the cross-vesting legislation (or as an endeavour to avoid dealing with the constitutional arguments), it was suggested that the issues of jurisdiction could otherwise be answered or circumvented in some of the cases. The challenges to constitutional validity should once again be faced and answered. The answer given in the Wakim and Brown proceedings should be that jurisdiction was validly conferred and properly exercised. The applications in those proceedings should be dismissed with costs. However, because Mr Darvall, one of the prosecutors in the Wakim proceedings, has died, it will be necessary to ensure that his legal personal representative is substituted in the record of this Court.
[232]
A separate and particular question is raised in the case of Spinks v Prentice . In this regard I agree with the opinion of the Full Court of the Federal Court that s 51(1) of the Corporations Act 1989 Cth, a federal law, validly conferred jurisdiction upon the Federal Court of Australia with respect to civil matters arising under the Corporations Law ACT. Even if the source of that federal enactment be s 122 of the Constitution (and not, as I am inclined to think, also s 51(xx)) it undoubtedly remained a valid conferral of jurisdiction on the Federal Court by the federal Parliament [291] . To the extent that the decision of this Court in R v Bernasconi [292] suggests otherwise, and posits the separation of the Territories from the Commonwealth for the purposes of Ch III of the Constitution, I would confine that decision strictly to the point decided in that case concerning the application of s 80 of the Constitution. I would give it no wider operation [293] .
Northern Territory v GPAO (1999) 196 CLR 553
2. (1915) 19 CLR 629.
3. cf Spratt v Hermes (1965) 114 CLR 226 at 266, per Menzies J; at 275, per Windeyer J.
No question therefore arises in these proceedings as to the power of a legislature of a self-governing Territory, with the consent of the federal Parliament, to enact a law conferring jurisdiction on a federal court. I would reserve the determination of the constitutional validity of any such law to a case in which a decision on the point is required.
As to the submission that s 447A of the Corporations Law impermissibly purported to confer non-judicial as well as judicial functions on the Federal Court, I agree, for the reasons given by Gummow and Hayne JJ, that it is inappropriate to express a view on that point at this stage of the Spinks litigation. In other matters, I respectfully disagree with the conclusions reached by the other members of this Court. I adhere to the views which I expressed in Gould and to the conclusion to which I came in those proceedings on the points which have been reargued in these.
In Prosper the Commonwealth [294] , Sir Robert Garran wrote a memoir of the first fifty years of the Australian federation. In it, he described the bold and optimistic spirits who made, applied and elaborated the Constitution and the first half-century of its existence. He explained the role of this Court, including the differences which had occasionally arisen. Of these, Garran cited [295] an extract from the closing words of Barton J in Duncan v Queensland [296] :
To say that one regrets to differ from one's learned brethren is a formula that often begins a judgment. I end mine by expressing heavy sorrow that their decision is as it is.
So, in this case, do I.
1. Garran, Prosper the Commonwealth (1958).
2. Garran, Prosper the Commonwealth (1958), p 170.
3. (1916) 22 CLR 556 at 605. See also at 627, per Isaacs J (diss).
Re Wakim; Ex parte McNally Re Wakim; Ex parte Darvall
[237]
Each of the applications for constitutional writs should be dismissed with costs. In the case of the application by Mr Darvall, who has died since the hearing, the costs in his application should be reserved and dealt with as Gummow and Hayne JJ have proposed.
[238]
An order should be granted extending the time for Mr Amann's application for constitutional writs but the order nisi for certiorari should be discharged. Mr Amann should pay the costs of the respondents. Mr Gould's applications should be dismissed with costs.
[239]
Special leave to appeal should be granted. The appeal should be treated as instituted and heard instanter. It should be dismissed with costs.
[240]
These cases raise essentially the same question as the one upon which six members of this Court were evenly divided in Gould v Brown [297] : that is, as to the validity of that part of the cross-vesting scheme which purports to invest State jurisdiction in federal courts.
[241]
As early as 1849, a committee of the Privy Council on Trade and Plantations foresaw some of the problems that might arise out of a system of disparate courts in the separate colonies established in Australia by that time and recommended that there be a legislative body to be known as the "General Assembly of Australia" to provide, among other things, for the establishment of a General Supreme Court to be a court of original jurisdiction or a court of appeal for any of the inferior courts of the separate provinces, and for the determining of the extent of the jurisdiction and forms and manner of proceedings of such a Supreme Court [298] .
See Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp 83-85; Jenks, The Government of Victoria (1897), pp 3-4.
It is surprising therefore that so little attention seems to have been paid in the Convention Debates to the investiture of federal jurisdiction in State courts, the jurisdiction to be exercisable by federal courts other than the High Court, and the circumstances which would call for the creation of federal courts of ample jurisdiction. The question whether the jurisdiction of that federal court should be inclusive of, or concurrent with any invested jurisdiction of the State courts seems to have been deliberately left open [299] . Indeed, such attention as was paid to these matters tended to focus mainly on such courts or tribunals as might be established to deal with industrial disputes [300] . Nowhere however is there the slightest hint of any possibility of the investiture of State jurisdiction in any federal courts.
Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898, pp 348-349.
2. Official Record of the Debates of the Australasian Federal Convention, (Sydney), 6 April 1891, pp 779-785.
Quick and Garran, in discussing s 77 of the Constitution, after referring to the fact that an unduly cumbersome judicial machinery might be dispensed with in the early days of the Commonwealth, predicted the development and extension of a national judicial system "to meet the gradually increasing requirements of the people" [301] . There was no attempt to explain the way in which such a national judicial system might be developed and extended, and how the gradually increasing requirements of the people would be manifested and accommodated. The authors did say that confidence in the Bench (the Supreme Courts) made it possible to contemplate, without misgiving, the exercise of federal jurisdiction by State courts - subject to the controlling power of the federal Parliament [302] .
Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
2. Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), par 337.
Neither the commentary by Quick and Garran nor the Convention Debates necessarily provide any firm foundation for a confident conclusion that there was an original understanding that the High Court and the State courts should carry the initial, and comparatively light burden arising from federal jurisdiction, and that when the time came a complete structure of federal courts should be created [303] . Nor do the Convention Debates and Quick and Garran explain why, if in effect there were to be dual systems of justice in Australia, no constitutional provision was expressly made to deal with the sorts of problems which have arisen and which were foreseeable by the time the Constitution was framed.
See Byers and Toose, "The Necessity for a New Federal Court (A Survey of The Federal Court System in Australia)", Australian Law Journal, vol 36 (1963) 308, at p 309.
Mr R J Ellicott QC (later Attorney-General and later a Judge of the Federal Court), in the House of Representatives on 24 July 1974, claimed this in respect of s 77(iii) of the Constitution [304] :
This provision was inserted in the Commonwealth Constitution; it is not found in the American Constitution. I took the trouble to find out what was in the minds of our founding fathers when they put in that provision. It is evidenced by a telegram which Symon sent to Sir Samuel Griffith on 1 April 1897. It was said of this proposal to vest Federal jurisdiction in State courts that the object was "to avoid the needless creation of Federal courts in all the States and the consequent degradation of State courts and avoid the difficulties of litigation which exists [sic] in America". They regarded the power to establish Federal courts, more by way of reserve if any State should close its courts or obstruct the determination of federal matters. The use of State courts was therefore seen by the founding fathers as a means of maintaining a simple court system within the Federation with the High Court as the supreme court of Australia. The founding fathers obviously saw the creation of Federal courts as unnecessary except in the last resort.
1. Parliamentary Debates (Hansard), p 598.
Another view is that the principal purpose of s 77 was to authorise the creation of federal courts to assume the burden of the original jurisdiction of the High Court if and when its appellate jurisdiction increased to such an extent as to make it inappropriate or impracticable for the High Court to exercise original jurisdiction. It has been suggested that one disadvantage of the investiture of State courts with federal jurisdiction was the need for the Commonwealth to accept the State courts as they were with all of their variations, limitations and traditions [305] . As a reason for the creation of federal courts this may have no or reduced current validity in light of the decisions of this Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [306] and Kable v Director of Public Prosecutions (NSW) [307] . Another reason which has been advanced, that the investiture of State courts with federal jurisdiction virtually meant that the federal government would hand over administration of the statutes involved to the judicial creatures of State governments whether those State governments might be or become hostile, friendly or merely disinterested [308] , shows little respect for, or confidence in both State and federal judges. It leaves open the entirely unacceptable inference that the former might be partial towards the States and the latter partial towards the Commonwealth. It also implies that some different judicial technique may be involved in the interpretation or application of federal statutes and overlooks the way in which, since federation, the State courts have diligently and competently found and applied federal law under the unifying influence of the High Court [309] .
See Byers and Toose, "The Necessity for a New Federal Court (A Survey of The Federal Court System in Australia)", Australian Law Journal, vol 36 (1963) 308, at p 313.
2. (1996) 189 CLR 1.
3. (1996) 189 CLR 51.
4. See Byers and Toose, "The Necessity for a New Federal Court (A Survey of The Federal Court System in Australia)", Australian Law Journal, vol 36 (1963) 308, at p 313.
5. The experience in the United States was different. After the ratification of the Constitution it was realised that there was an immediate need for a system of federal courts, not only as a unifying influence over very parochial communities and States, but also because, during the Confederation, many of the State courts had been heavily partial in their determinations of suits involving sister States, citizens of those States and foreign governments and foreigners: see Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York, Connecticut & Vermont, 1787 to 1987 (1987), pp 6-11.
Abortive attempts to introduce a federal court of much broader jurisdiction than existed at each of these times were made in 1967, 1973 and 1974 [310] . All were criticised, particularly by those who saw the proposals as erosions of the status of the Supreme Courts of the States [311] . It was also contended by some that the introduction of a new structure of courts would be cumbersome, expensive, would duplicate existing judicial facilities, and would give rise to unnecessary jurisdictional disputes and forum-shopping [312] . One of the most vociferous critics was Sir Walter Campbell, who became Chief Justice of the Supreme Court of Queensland. His Honour predicted that litigants would "forum shop" and that there would be increasing, stultifying and frustrating problems of jurisdiction [313] . And so it has proved [314] .
See Crawford, "The New Structure of Australian Courts", Adelaide Law Review, vol 6 (1977) 201, at p 202.
2. Street, "The Consequences of a Dual System of State and Federal Courts", Australian Law Journal, vol 52 (1978) 434.
3. Else-Mitchell, "Burying the Autochthonous Expedient?", Federal Law Review, vol 3 (1968) 187.
4. See "The Relationship Between the Federal Court and the Supreme Courts of the States", University of Queensland Law Journal, vol 11 (1979) 3.
5. The preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 NSW (and the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 Cth, which is in substantially the same form) acknowledge the problems that have arisen, if in a somewhat understated way: " [I]nconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and 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 the Commonwealth or another 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."
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [315] Mason J, with whom Stephen J agreed, said [316] :
Lurking beneath the surface of the arguments presented in this case are competing policy considerations affecting the role and status of the Federal Court and the Supreme Courts of the States. There is on the one hand the desirability of enabling the Federal Court to deal with attached claims so as to resolve the entirety of the parties' controversy. There is on the other hand an apprehension that if it be held that the Federal Court has jurisdiction to deal with attached claims, State courts will lose to the Federal Court a proportion of the important work which they have hitherto discharged, work which the Federal Court has no jurisdiction to determine if it be not attached to a federal claim.
1. (1981) 148 CLR 457.
2. Philip Morris (1981) 148 CLR 457 at 513.
In dissent Aickin J was of the view that there was no such attached jurisdiction, "whatever the degree of overlap there may be in the facts relevant to the two kinds of matter" [317] , and Wilson J would have permitted the attached or pendent questions (however they might be described) to be decided only when the federal question could not be resolved without the determination of the non-federal question [318] .
Philip Morris (1981) 148 CLR 457 at 534.
2. Philip Morris (1981) 148 CLR 457 at 545.
Gibbs J, one of the majority, said that "if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination" [319] .
Mason J (with whom Stephen J agreed) held that the Federal Court had jurisdiction to decide an "attached non-severable claim", being one where the claims depend on common transactions and facts that arise out of a common sub-stratum of facts [320] . The approach of Barwick CJ was somewhat different. It was almost as if his Honour started with a presumption in favour of jurisdiction when he said "[t]o be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connection with which federal jurisdiction has been attracted" [321] .
Philip Morris (1981) 148 CLR 457 at 512.
2. Philip Morris (1981) 148 CLR 457 at 474.
Murphy J was of the opinion that the Federal Court might determine "the whole case, that is, resolve judicially every incidental and related issue, every issue which is not separate and distinct from those which arise under a direct grant of federal jurisdiction under s 77 of the Constitution " [322] .
In Stack v Coast Securities (No 9) Pty Ltd [323] , three Justices (Mason, Brennan and Deane JJ) described the identification of what fell within what had come to be called in Fencott v Muller [324] the accrued jurisdiction of the Federal Court as a recurrent problem. The resolution of that problem in Stack was said to depend upon the exercise, as a matter of impression, of a practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
(1983) 154 CLR 261 at 294.
2. (1983) 152 CLR 570.
No doubt whilst this is, with respect, about as helpful a statement as can be made for the resolution of what is an inevitable and almost intractable problem, obviously minds may and will differ in the making of practical judgments and in the forming of impressions.
This brief discussion of the problems which were long foreshadowed and which have repeatedly arisen when separate superior courts were actively placed in a position of adjudicating upon the same or related causes of action, is enough to demonstrate the great desirability of a legislative solution to the problems. The cross-vesting legislation which has the support of the Commonwealth and all of the States and the Territories represents such an attempt but regrettably, does not, in the respects to which I will refer, have the necessary constitutional foundation for its validity.
I can find nothing in Ch III of the Constitution even to suggest that the States might, whether with or without the concurrence of the Commonwealth, invest federal courts with State jurisdiction.
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
[258]
This section is concerned with the judicial power of the Commonwealth and, as the use of the definite article indicates, the whole of the judicial power of the Commonwealth. It says nothing of, and is obviously not concerned with State judicial power.
[259]
Section 72 states the rules for the appointment and terms of Justices of the High Court and other courts created by the Commonwealth Parliament.
[260]
Section 73 confers and defines the appellate jurisdiction of the High Court to include appeals from the Supreme Court of any State or of any other court of any State from which at the time of federation, an appeal lay to the Queen in Council.
[261]
Section 74 prohibited appeals to Her Majesty in Council in inter se questions except in cases in which this Court was prepared to certify that the question raised ought be determined by Her Majesty in Council.
[262]
Section 75 provides that the High Court shall have original jurisdiction in a variety of matters, all being matters (save for the diversity jurisdiction) of particular relevance to the Commonwealth or a Commonwealth head of power. The same may be said of s 76 which empowers the Commonwealth Parliament to make laws conferring further original jurisdiction on the High Court, again with respect to matters having a clear Commonwealth flavour, or necessary for the adjudication of rights and claims under the laws of different States.
[263]
The introductory words of s 77, "[w]ith respect to", although ample in scope [325] , tie the powers of the Commonwealth Parliament in defining the jurisdiction of any federal court other than the High Court, to any of the matters mentioned in ss 75 and 76 of the Constitution. Of particular importance is s 77(iii), which, while empowering the investment of federal jurisdiction in any court of a State, is silent as to the possibility of any reciprocal investment. The applicants' arguments rightly lay great stress on this provision.
Herald & Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418
[264]
The other sections of the Chapter contain no suggestions that a federal court might be a repository of State judicial power. Section 78 contains the limiting words "[t]he Parliament may make laws in respect of matters within the limits of the judicial power". Section 79 uses the words "[t]he federal jurisdiction of any court" and in terms is concerned with federal jurisdiction. And the operation of s 80 is restricted to indictments for any offence against any law of the Commonwealth.
[265]
Because of the language of Ch III of the Constitution, particularly s 77 thereof, and for the reasons stated by McHugh J in Gould v Brown and those given by his Honour in these cases I would hold that the States may not invest federal courts with the jurisdiction of the former.
[266]
The jurisdiction of the Federal Court in the Australian Capital Territory is a separate matter which I will deal with in the case of Spinks v Prentice , heard concurrently with the other two cases.
[267]
It is now necessary to dispose of each of the cases.
Re Wakim; Ex parte McNally Re Wakim; Ex parte Darvall
[268]
In July 1985 Mr Wakim was awarded damages in the Supreme Court of New South Wales for personal injuries sustained in an accident in the course of his employment by Tedros and Nawal Nader. His action was brought against Tedros Nader only. In October 1985 Tedros Nader was declared bankrupt and the Official Trustee in Bankruptcy (the Trustee) was appointed trustee of his estate. In June 1987 the Trustee brought proceedings in the Supreme Court of New South Wales against Nawal Nader, seeking orders that her partnership with Tedros Nader was or had been dissolved. A firm of solicitors in which Messrs McNally were partners was retained by the Trustee, and the firm in turn retained Mr Darvall QC.
[269]
In March 1990 the parties settled. It was agreed that Mr Wakim be paid $10,000. In July 1993 Mr Wakim brought proceedings in the Federal Court against the Trustee. One of his claims was made pursuant to s 176 of the Bankruptcy Act 1966 Cth, on the basis that the Trustee had been guilty of a breach of duty as trustee of the bankrupt estate. Following the commencement of those proceedings, Mr Wakim brought two further actions against Mr Darvall and the firm of solicitors in negligence. The claims were brought in the Federal Court pursuant to s 4(1) of the New South Wales cross-vesting legislation.
[270]
Mr Darvall and the solicitors contend that the Federal Court has no jurisdiction to hear the action in negligence and seek a writ of prohibition.
[271]
There are, it can be seen, three separate proceedings which have been brought by Wakim: against Mr Darvall, the solicitors and the Trustee in negligence, and against the last also for orders pursuant to ss 176, 178 and 179 of the Bankruptcy Act [326] . No claim as pleaded is alleged to be dependent upon either of the other claims.
Sections 176, 178 and 179 provide: "176 (1) Where, on application by the Inspector-General or by a creditor who has or had a debt provable in the bankruptcy, the Court is satisfied that a person who is or has been a trustee of a bankrupt's estate has been guilty (whether before or after the commencement of this section) of breach of duty in relation to the bankrupt's estate or affairs, subsection (2) applies. (2) The Court may make any one or more of the following orders: (a) an order directing the person to make good any loss that the bankrupt's estate has sustained because of the person's breach of duty; (b) if the person is a registered trustee - an order directing the Inspector-General to cancel the person's registration as a trustee; (c) any other order that the Court considers just and equitable in the circumstances. 178 If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. 179 (1) The Court may, on the application of the Inspector-General, a creditor or the bankrupt, inquire into the conduct of a trustee in relation to a bankruptcy and may do one or both of the following: (a) remove the trustee from office; and (b) make such order as it thinks proper. (2) The Inspector-General or a creditor may at any time require a trustee to answer an inquiry in relation to the bankrupt's estate or affairs."
Applying the test propounded in Stack of impression and practical judgment I do not think that there is here one justiciable controversy. The absence of any attempt to join any party as a third party, the different nature of the claims made against the various defendants, the fact that there are three separate proceedings and the entirely non-federal nature of the claims against the solicitors and Mr Darvall take these matters outside the scope of any accrued, attached, or pendent jurisdiction of the Federal Court (whatever term be appropriate). It is not enough, in my opinion, that some of the facts which will have to be established to make out one claim may need also to be proved to make good another claim. It is only if there is a federal claim actually made in an action that any other claims of a non-federal nature may be determined by the Federal Court in that action, and whether they should be so determined is a matter that will fall for the determination of the Federal Court in any particular case [327] .
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475, per Barwick CJ. The exercise of accrued jurisdiction is discretionary and not mandatory.
[273]
In making their applications for prohibition the prosecutors have acted promptly and have not been guilty of any conduct which, if discretionary considerations be relevant, would operate to disqualify them from obtaining relief. As Gibbs CJ said in R v Ross-Jones; Ex parte Green [328] :
If 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.
1. (1984) 156 CLR 185 at 194.
[274]
The question as to the relief which should be granted is complicated by the fact that Mr Darvall died after the hearing of argument. The application by him requires some separate consideration. With respect to the solicitors I would order that a writ of prohibition issue to the respondents restraining the first respondents and each of them from hearing and determining the application brought by the second respondent in proceedings in the Federal Court of Australia numbered NG 65/1994 and restraining the second respondent from further proceeding with those Federal Court proceedings, and I would further order that the second respondent, Mr Wakim, pay the prosecutors' costs of and incidental to these proceedings and the Federal Court proceedings.
[275]
Because I am in a minority it is unnecessary for me to reach any concluded view about what relief, if any, should be afforded to Mr Darvall's executors or administrators, or otherwise in respect of his application. No legal personal representative has been appointed. I would accordingly join in the order of the majority with respect to his claim that the costs of it should be reserved for consideration by a single Justice on application made with not less than seven days notice.
[276]
On 30 November 1992, the Federal Court ordered that Amann Aviation Pty Ltd (a New South Wales company) be wound up. Mr Brown was appointed as liquidator. On 7 July 1995 the Federal Court ordered pursuant to s 596A of the Corporations Law that summonses be issued requiring various persons, including the applicants, to attend the Federal Court to be examined about the affairs of the company, and that these persons produce certain documents to the Court.
[277]
Following the making of these orders, Mr Gould and others - but not Mr Amann - applied to the Federal Court seeking the following [329] : (i) a declaration that the Federal Court had no jurisdiction to make the winding up orders; (ii) a declaration that that Court had no jurisdiction to order and conduct the examinations; (iii) an order that the summonses issued pursuant to the examination orders be set aside (there was no application to seek the discharge of the winding up orders).
[278]
After the applications were filed, Black CJ referred some questions to the Full Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 Cth [330] . The Full Court answered the questions by unanimously holding that the Court did have jurisdiction to make winding up orders, and to order and conduct examinations under the Corporations Law. However, seemingly because of the nature of the stated case, no order was entered dismissing the notice of motion that led to the proceedings in the Full Court, but the examinations continued.
Section 20(1A) provides: "If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter shall be exercised by a Full Court."
Mr Gould then appealed to the High Court and it was in that appeal that the Court was evenly divided. Pursuant to s 23(2)(a) of the Judiciary Act 1903 Cth the decision of the Full Court was therefore affirmed [331] . In the present proceedings, the applicants seek prerogative and other relief.
Section 23(2)(a) relevantly provides: " if the Court is equally divided in opinion in the case where a decision of the Federal Court of Australia is called in question by appeal or otherwise, the decision appealed from shall be affirmed "
[280]
Because Mr Amann was not a party to the earlier litigation he is clearly not precluded on the basis of res judicata or any issue estoppel from agitating any issue decided in Gould v Brown . I will return to his situation later.
[281]
Mr Gould is in a different position. Because this Court was evenly divided in Gould v Brown the decision of the Full Federal Court effectively upholding the validity of the cross-vesting legislation became the final decision in the case. However, as I have said, formal orders dismissing the motion and giving effect by record to that final decision were not entered.
[282]
This Court has now, by a significant majority, taken an entirely different view of the validity of the cross-vesting legislation from that of the Federal Court and three members of this Court in Gould v Brown . I confess to having a strong inclination against a consequence adverse to a litigant in this Court arising out of the unfortunate circumstance that this Court was unable to reach a majority decision on a matter of such critical importance as the jurisdiction of the Federal Court of Australia.
[283]
The question becomes then whether the doctrines of res judicata and issue estoppel or other matters operate to deny Mr Gould the relief he seeks or other relief.
[284]
The importance of the doctrine of res judicata in any legal system is not to be understated. As Campbell J said in Jeter v Hewitt [332] :
The maintenance of public order, the repose of society, and the quiet of families, require that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth.
1. (1859) 63 US 352 at 364.
[285]
The doctrine is one of almost universal application, was part of early Roman law [333] and is part of the law of the Continental countries of Europe [334] .
Mommsen, Krueger and Watson (eds), The Digest of Justinian (1985), Bk 44, Title 2; Tomkins and Lemon (eds), The Commentaries of Gaius on the Roman Law, Bk IV, s 107.
2. eg, see the French Civil Code, Bk III, Ch VI, s III.
[286]
In Blair v Curran [335] , Dixon J spoke of the distinction between res judicata and issue estoppel. His Honour said:
[I]n the first [res judicata] the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second [issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Earlier Dixon J had said [336] :
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.
1. (1939) 62 CLR 464 at 532.
2. Blair v Curran (1939) 62 CLR 464 at 531
[287]
Although Fullagar J dissented in Jackson v Goldsmith [337] , what his Honour said of the principle of res judicata was to no different an effect from what the other members of the Court stated:
[W]here an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. (Emphasis added.)
1. (1950) 81 CLR 446 at 466.
[288]
This case is said to be a case of res judicata so far as Mr Gould is concerned because his proceedings have passed into judgment, that is to say the judgment of the Full Court of the Federal Court.
[289]
Order 36 of the Federal Court Rules Cth is concerned with the entry of judgments and orders. Rule 1 provides that a party desiring to enter an order shall lodge a draft of the order with the Registrar. The use of the word "desiring" makes it plain that a party is not obliged to enter an order. Rules 2, 3 and 4 provide that the Registrar may settle the draft either with or without an appointment for the attendance of the parties and is obliged to do so on or after the appointment (if of course one has been made). Rules 5, 6 and 7 empower the Registrar to draw and settle an order by direction of the Court or by authority of a rule notwithstanding that no draft has been lodged and no appointment for the settlement of an order has been made. Such a draft is subject to review by the Court but r 5(3) contemplates that the Registrar is not to exercise his or her powers of settlement of an order under r 5 unless the Court so directs or a party so requests. Rule 8(1) provides that a party may enter an order at any time and r 8(2) requires that an order be entered in various circumstances including where an appeal from an order has been instituted, or an application for leave to appeal from the order has been made. (The rule does not in terms refer to an application for leave to appeal to the High Court or an appeal to the High Court.)
[290]
The fact that the Rules do not compel either the Registrar or a party to enter a judgment and thereby to make it a part of the record of the Court serves to distinguish an order or judgment of the Federal Court from the judgment under consideration in Bell v Holmes [338] . In that case McNair J held that a plea of res judicata was not to be defeated by the non-production of a record of the judgment because under O 24 of the County Court Rules UK the Registrar was required to enter up the judgment [339] .
[1956] 1 WLR 1359 at 1367; [1956] 3 All ER 449 at 456.
2. But see Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 98, 101.
Although the doctrine of res judicata is of very broad application it has been strongly suggested that exceptions to it may exist in the case of judicial review by way of prerogative writs [340] . In R v Secretary for the Environment; Ex parte Hackney London Borough Council [341] , May LJ, sitting as a member of a Divisional Court, delivered the Court's judgment:
[S]imilar considerations apply to proceedings for judicial review. In such proceedings, there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the "first" application will have decided. Moreover, we do not think that there is in proceedings brought under O 53 any true lis between the Crown, in whose name the proceedings are brought (and we venture a reservation about whether or not issue estoppel could operate against the Crown), and the respondent or between the ex parte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision: the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute.
1. See the discussion by Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), pars 356-359.
2. [1983] 1 WLR 524 at 538-539; [1983] 3 All ER 358 at 366-367.
The Court adopted this statement of Professor Wade [342] :
[I]n these procedures the court "is not finally determining the validity of the tribunal's order as between the parties themselves" but "is merely deciding whether there has been a plain excess of jurisdiction or not". They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata. (Footnotes omitted.)
1. See Wade, Administrative Law, 5th ed (1982), p 246.
Although not necessary for my decision I also incline to the view that the Divisional Court was right to hold that the doctrine of issue estoppel cannot be relied on in applications for judicial review, although the court has an inherent jurisdiction as a matter of discretion in the interests of finality not to allow a particular issue which has already been litigated to be re-opened. This depends upon the special nature of judicial review under RSC, Ord 53 which makes it different both from ordinary civil litigation inter partes and from criminal proceedings. Like the Divisional Court, I adopt the passage from Professor Wade's Administrative Law set out in the judgment of the Divisional Court.
1. R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 WLR 592 at 602[1984] 1 All ER 956 at 964-965
However in R v Mayor and Justices of Bodmin [344] an order nisi made on a second application for a writ of mandamus was discharged on the ground that an earlier application (on the same evidence) had been rejected.
The authors (Spencer Bower, Turner and Handley) of The Doctrine of Res Judicata [345] express the opinion that res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata and estoppels [346] . And with that as a general proposition it is not easy to disagree. But equally, it is not easy to approve of a slavish application of the doctrine to a situation as unique as this one. To adapt the language of Campbell J [347] , it can hardly be said that the result in Gould v Brown has significantly contributed to public order and the repose and quiet of families. Nor can it be said that that result constitutes a definite determination for acceptance as irrefragable legal truth. As Lord Goff of Chieveley recognised [348] , a practical exception to the rule of res judicata exists to enable "justice to be done in rare cases". But the fact that the relief is claimed nominally at the suit of the Crown, and that the writs are sought to prevent an excess of jurisdiction or to cure some other like serious and fundamental defect in the exercise of a jurisdiction, is enough to require that these remedies be given separate consideration and to afford a basis in some circumstances for different treatment of the doctrine of res judicata in respect of them [349] .
3rd ed (1996), pp 198-202.
2. Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed (1996), p 200.
3. Jeter v Hewitt (1859) 63 US 352 at 364
4. Republic of India v India Steamship Co Ltd [1993] AC 410 at 424
5. For a brief history of the writs see Halsbury's Laws of England, 4th ed, vol 1(1), par 80.
[296]
What Knox CJ and Gavan Duffy J said of prohibition in R v Hibble; Ex parte Broken Hill Pty Co Ltd [350] is of relevance to this case:
The real object of the writ was not merely to prevent an individual being vexed by an order which might affect him in his person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it. So far as the writ is regarded as a means of protection for the individual who has not disentitled himself by his conduct, the necessity of the case demands that it shall be granted at any time until all possible operation of the order complained of has been completely exhausted. If, on the other hand, the issue of the writ be regarded as intended to keep an inferior Court within the limits of its jurisdiction, it should never be too late to get rid of what might be regarded in the future as a precedent for the exercise of a jurisdiction which is not really justified by the law.
1. (1920) 28 CLR 456 at 463.
[297]
I have formed the view that the doctrine of res judicata does not apply to this exceptional case for these reasons: no judgment has been entered and there was no compulsion upon anyone to enter judgment in Gould v Brown ; the case is a constitutional case; matters of great public importance are involved; this Court has held that the Federal Court never had any jurisdiction in the matter at all; the relief sought in the previous suit was prerogative relief brought in the name of the Crown; and, the applicants failed only because of the extremely rare circumstance of this Court being unable to reach a majority decision.
[298]
There is a further question however whether for other reasons relief should be refused to Mr Gould. A limit is imposed upon the time within which an application for certiorari must be made. An application for an order nisi for a writ of certiorari "shall not be granted" unless it is made within six months after the date of judgment or order [351] . No time limits are imposed by the Rules upon the writ of prohibition. Order 60, r 6(1) permits a Court or a Justice to abridge or enlarge the time appointed by the Rules for doing an act "upon such terms, if any, as the justice of the case requires".
[299]
In my opinion, the justice of Mr Gould's case does require that time be extended to such extent as may be necessary. Delays can readily be explained by what I have described as the unfortunate circumstance that different courts and indeed different judges of the same court took diametrically opposed views of Mr Gould's original proceedings. Those are very special circumstances indeed, in practice very unlikely to be repeated, particularly when it is the convention of this Court to sit seven Justices in constitutional cases whenever that is possible, as it usually is.
[300]
I would grant any extensions of time necessary to enable Mr Gould to pursue his application in this case as I would Mr Amann. Apart from the fact that Mr Gould has borne the heat and burden of this expensive and prolonged litigation, explicable and understandable delay is hardly a circumstance which should operate to deny him relief to which he might otherwise be entitled. If Mr Gould should have relief, as I think he should, there is every reason why Mr Amann should be similarly entitled.
[301]
But the relief to which they are entitled needs some further consideration. In Ainsworth v Criminal Justice Commission [352] , this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) held in a case in which neither mandamus nor certiorari could be granted that the applicant had a real interest in obtaining, and was entitled to obtain a declaration that there had been a failure to observe procedural fairness because of the harm caused to his business and commercial reputation. The case also demonstrates the need for flexibility on the part of the courts to give an affirmative remedy where one is deserved, will have utility and may lawfully be given.
[302]
Mr Amann seeks prohibition, certiorari and orders for the delivery up of tapes and transcripts of the examination. Here Mr Amann remains subject to a compulsory order to sign the transcript of his examination. It has not been formally terminated. Accordingly, there would remain something to prohibit but certiorari would if granted prevent any further steps under the order for examination. Mr Gould seeks similar relief.
[303]
I would grant certiorari to both prosecutors to quash the orders made by the second respondent in proceedings VG3304 of 1992 on 7 July 1995 ordering the prosecutors to attend before the Federal Court for examination.
[304]
But for the matters referred to by Gummow and Hayne JJ in their reasons for judgment [353] , I would have declared that the Federal Court had no jurisdiction to make the winding up order of 30 November 1992 and made other orders consequential thereupon. However in the exercise of the Court's discretion and principally because of the likely supervening rights of third parties, such a declaration should not be made in respect of the winding up order itself.
[305]
I would also order that the fourth respondents pay the prosecutors' costs in this Court.
[306]
On 26 June 1998 the Federal Court made orders pursuant to s 597(9) of the Corporations Law ACT for the production of documents by various people, including the applicants. On 29 June 1998, the Federal Court issued summonses pursuant to s 596A or s 596B to various people, including the applicants, requiring them to attend examinations on matters relating to the winding up of a company, White Constructions (ACT) Pty Ltd, incorporated in the Australian Capital Territory. When the summonses were returned, the applicants sought adjournment of the proceedings, and, after notice was given to the Attorneys-General under s 78B of the Judiciary Act, sought to argue on constitutional grounds that the Court had no jurisdiction to issue the summonses.
[307]
Branson J who heard the application refused to grant any adjournment and to extend the time in which an application could be made to review the decision to issue the summonses. The Full Court of the Federal Court constituted by Beaumont, Burchett and Lehane JJ dismissed an appeal.
[308]
Both in the Federal Court and here the applicants argued that s 51(1) of the Corporations Act 1989 Cth is unconstitutional because it purports to confer jurisdiction "with respect to civil matters arising under the Corporations Law of the Australian Capital Territory".
[309]
Section 51(1) of the Corporations Act does in terms confer on the Federal Court jurisdiction "with respect to civil matters arising under the Corporations Law of the Capital Territory".
[310]
Section 122 of the Constitution provides as follows:
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
[311]
Section 77(i) of the Constitution expressly permits Parliament to make laws "defining the jurisdiction of any federal court other than the High Court".
[312]
In Northern Territory v GPAO [354] , Gleeson CJ and Gummow J (with whom Hayne J agreed) said this:
[Section] 76(ii), in conjunction with s 77(i) of the Constitution, operates in accordance with its terms and permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution.
1. (1999) 196 CLR 553 at 591.
[313]
Accordingly, the Federal Court had jurisdiction to make the orders that it did in this case and the applications should be dismissed. I would order that the applicants pay the respondent's costs.
varied order no 3 by deleting the word "in" in the phrase "in the winding up of Amann Aviation Pty Ltd (In liq)" and substituting therefor the phrase "in the Federal Court under the order for" and added an order no 6 that the prosecutor Gould pay the respondents' costs of his application.
Parties
Applicant/Plaintiff:
Spinks
Respondent/Defendant:
Prentice
Cases Cited (135)
High Court of Australia
Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Re Wakim; Ex parte McNally (S74/1998)
[1999] HCA 27
The Supreme Court of Canada was given a comparable jurisdiction in 1875, 1891 and 1906 - see Attorney-General (Ontario) v Attorney-General (Can) [1912] AC 571
Applications in Re Wakim dismissed with costs (jurisdiction upheld on accrued basis); in Re Brown, time extended for certiorari, order absolute for certiorari to quash examination orders and prohibition to prevent further steps in winding up, but winding-up order not quashed; special leave granted in Spinks v Prentice but appeal dismissed with costs; cross-vesting legislation held invalid.