State Bank of New South Wales v Commonwealth Savings Bank of Australia

Before me it was agreed by all parties that the matter should be remitted to another court, but it was submitted on behalf of the defendant that the remitter should be to the Federal Court and not to the Supreme Court.

The first submission made by Mr. Handley on behalf of the defendant was that there is no power to remit the present proceedings to any court except the Federal Court. The power of remitter is given by sub-ss. (1), (2) and (2A) of s. 44 of the Judiciary Act, which read as follows:

(1) Any matter other than a matter to which sub-section (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.

(2a) Were a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

Sub-section (1) was inserted in the Judiciary Act in what is substantially its present form by the Judiciary Amendment Act 1976, although it has since been amended. Sub-section (2) was inserted by the Judiciary Amendment Act (No. 2) 1984, which took effect on 1 June 1984, and sub-s. (2A) by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984 Cth, which was assented to on 25 June 1984. Mr. Handley's argument was that the matter is of the kind described in sub-s. (2A) and that that sub-section contains an exhaustive statement of the power to remit matters of the kind to which it refers. He submitted that the affirmative words of the sub-section import a negative, namely that the remitter is not to be made to any other court. He relied on the principle of interpretation, expressum facit cessare tacitum, discussed in R. v. Wallis [1] . 1. (1949) 78 C.L.R. 529, at p. 550.

I do not agree that the enactment of sub-s. (2A) was intended to narrow the power so recently granted by sub-s. (2) of s. 44. On the contrary, I regard it as intended to confer an additional and independent power of remitter. The principle of interpretation upon which Mr. Handley relied might equally have been applied to sub-s. (2), with the result that each sub-section would provide exhaustively for the manner of remitter of matters of the kind to which it refers, were it not for the fact that the sub-sections to some extent overlap - matters within s. 38(c) and (d) of the Judiciary Act would come under both sub-s. (2) and sub-s. (2A). In my opinion the principle cannot sensibly be applied to either section so as to exclude the operation of the other.

Sub-section (1) of s. 44 empowered this Court to remit a matter pending before it only to a court that had jurisdiction over the same kind of party and the same kind of subject-matter as those in the proceedings in question: Johnstone v. The Commonwealth [2] . However, neither the State Supreme Courts nor the Federal Court had any jurisdiction in matters of the kind referred to in s. 38 of the Judiciary Act, so that no remitter of those matters was possible. Sub-section (2) then gave a power of remitter in respect of the matters described in pars. (a)-(d) of s. 38. Apart from matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court, which are mentioned in s. 38(e), and which were obviously excluded from the power of remitter as a matter of policy, there remained some matters in respect of which neither the State courts nor the Federal Court had jurisdiction - particularly those matters in respect of which jurisdiction was removed from State courts by s. 9 of the Administrative Decisions (Judicial Review) Act 1977 Cth, but was not conferred on the Federal Court by s. 5(1) of that Act. In re O'Reilly; Ex parte Bayford Wholesale Pty. Ltd. [3] was not such a matter, because the decisions there sought to be reviewed did not answer the description set out in Sch. 1 of the Administrative Decisions (Judicial Review) Act, and the Federal Court did have jurisdiction. It was anomalous that matters of the kind described in Sch. 1 of that Act had to be heard in this Court, and the effect of sub-s. (2A) was to remove that anomalous limitation on the power of remitter. Its provisions are wider than was necessary for that purpose, but they should not be construed restrictively: cf. Johnstone v. The Commonwealth [4] . If a matter falls only under sub-s. (2A), it may be remitted only to the Federal Court, but if it falls under sub-s. (2) as well, it may be remitted to a State or Territory court or to the Federal Court.

1. (1979) 143 C.L.R. 398. 2. (1983) 151 C.L.R. 557. 3. (1979) 143 C.L.R., at pp. 402, 407.

The present is a matter referred to in s. 38(c) of the Judiciary Act; the cross-claim is a suit by a person suing on behalf of the Commonwealth (see Inglis v. Commonwealth Trading Bank of Australia [5] ) against the State of New South Wales. It is unnecessary to decide whether the plaintiff is a person suing on behalf of a State, so that the matter is also of the kind referred to in s. 38(d). For these reasons I consider that both s. 44(2) and s. 44(2A) give power to remit the present matter.

It then becomes necessary to decide whether in the proper exercise of the Court's discretion the present matter should be remitted to the Federal Court or to the Supreme Court of New South Wales. Since in either case the matter would be heard in Sydney, neither court would be a more convenient forum that the other. On behalf of the plaintiff it was submitted that the matter might be heard more expeditiously and conveniently if it were placed on the commercial causes list of the Supreme Court, but I have no means of judging the correctness of that assertion. I have no doubt that the matter would be dealt with efficiently and with satisfactory expedition in either court. It was further submitted that the Supreme Court is the natural forum, and that which the plaintiff would prefer. However, it is not the forum which the plaintiff has chosen, even if the choice was dictated by necessity.

On behalf of the defendant it was, however, submitted that the law to be applied in the Supreme Court would be materially different in two respects from that which would be applied if the matter remained in this Court. In the first place, s. 61 of the Evidence Act 1898 N.S.W., as amended, provides that when the Attorney-General for that State certifies in writing that in his opinion any written or oral communication described therein in a government communication and is confidential, and that the disclosure of such communication in any legal proceedings described in the certificate is not in the public interest, the communication shall not be disclosed or be admissible in evidence in those proceedings. It was submitted that the provisions of s. 79 of the Judiciary Act would not render s. 61 applicable to proceedings in this Court or in the Federal Court, although the section would be available to be used by the Attorney-General if the proceedings were heard in the Supreme Court. If it were correct to say that the Attorney-General for New South Wales might, by his certificate, prevent the defendant from adducing relevant evidence in one court but not in another, I should have no hesitation in remitting the matter to the latter court. However I need not consider whether the defendant's submission is correct, because both Mr. Rayment for the plaintiff and the Solicitor-General for the State of New South Wales have formally conceded that if s. 61 has no application to the Federal Court or the High Court it would equally have no application to the Supreme Court in the present case. In the light of this concession, which counsel would, if necessary, repeat in the Supreme Court, s. 61 will have no different operation, if it has any operation at all, whether the matter is heard in the Federal Court or in the Supreme Court.

Secondly, it was submitted by all parties that s. 94 of the Supreme Court Act 1970 N.S.W., as amended, which gives the Supreme Court power to award interest, would have no application to the proceedings if they remained in this Court or if they were remitted to the Federal Court and that the Supreme Court would therefore have a statutory power to award interest which this Court and the Federal Court lack. Counsel for the plaintiff submitted that a statutory power to award interest is regarded as a necessary adjunct of judicial power in almost every jurisdiction in Australia and that it would be unjust to remit the proceedings to a court that lacked such a power. On the other hand counsel for the defendant submitted that the matter should not be remitted to a court which would be called on to apply a law materially different from that which would be applicable if the matter were heard in this Court.

In Australian National Airlines Commission v. The Commonwealth [6] , Mason J. expressed the view that s. 79 of the Judiciary Act does not render s. 94 of the Supreme Court Act applicable to proceedings in the High Court. If that view is correct, of course s. 79 equally does not render s. 94 applicable in the Federal Court. The expression of opinion made by Mason J. was unnecessary for his decision, since the action in that case was not commenced until after the Supreme Court Act had come into operation and s. 16(1) of that Act made it clear that s. 94 was not intended to apply to proceedings already commenced, with certain exceptions which Mason J. held inapplicable. The operation of s. 79 of the Judiciary Act in a case such as this raises very difficult questions, as the differences of opinion manifested in John Robertson & Co. Ltd. v. Ferguson Transformers Pty. Ltd. [7] reveal. Without having heard full argument I would not express any concluded opinion on the question whether s. 79 does render s. 94 applicable to proceedings in this Court or in the Federal Court. However it is clear that s. 94 would be applicable if these proceedings were remitted to the Supreme Court.

1. (1975) 49 A.L.J.R. 338, at p. 340; 6 A.L.R. 433, at pp. 435-436. 2. (1973) 129 C.L.R. 65.

In Pozniak v. Smith [8] the majority of the justices who sat to hear that case cited with approval the observation of Brennan J. in Robinson v. Shirley [9] that the power of remitter "is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations". Mason J., who delivered a separate judgment in Pozniak v. Smith, was of a similar opinion [10] . In that case the question was whether the matter should be remitted to the Supreme Court of New South Wales or to the Supreme Court of Queensland and it was held that since the relevant law in the competing jurisdictions was materially different in its effect on the rights of the parties, the only safe course was to remit to the State whose law had given rise to the cause of action, viz., Queensland.

1. (1982) 151 C.L.R. 38, at p. 47. 2. (1982) 149 C.L.R. 132, at p. 136. 3. (1982) 151 C.L.R. 38, at pp. 48, 51.

If it be assumed that the cause of action in the present case arises under the law of New South Wales, it does not follow that Pozniak v. Smith requires that the matter should be remitted to the Supreme Court of that State. The purpose of a remitter under s. 44 is simply to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact. The Court should not, by making a remitter, alter the rights of the parties. The plaintiff chose the High Court as its forum. It apparently did so because it was thought, no doubt correctly, that this Court had exclusive jurisdiction; indeed I was informed that an action was commenced in the Supreme Court of New South Wales but was discontinued because of doubts as to the jurisdiction of that court. When this Court is called on to decide to which of two courts a remitter should be made, if the law to be applied in one of the competing jurisdictions is the same as, and that in the other is materially different from, that which would be applied if the matter remained in this Court, the remitter should be made to the court in which the law to be applied is the same as that applicable in this Court. As I have said, I do not accept that it is clear that the law to be applied in this Court or in the Federal Court would be different from that to be applied in the Supreme Court of New South Wales but it is clear that the law to be applied in the Federal Court would be the same as that applicable in this Court, and the remarks of Mason J., which are of course entitled to great respect, support the view that s. 94 of the Supreme Court Act, which would be applied in the Supreme Court, would not be applied in this Court or in the Federal Court. The amount of interest that might be awarded under s. 94 might run into millions of dollars. The fact that the liability of the defendant might be increased to that extent if the matter were remitted to the Supreme Court is in my opinion decisive. The matter should be remitted to the Federal Court.

I would add that it is anomalous, if it be correct, that neither this Court nor the Federal Court has the statutory power to award interest which most other superior courts in Australia possess. That, however, is no reason why the power of remitter should be used to increase the plaintiff's rights. I of course say nothing on the question whether any power exists to award interest under the general law, as the plaintiff will contend.

On 8 December 1983 I ordered that certain preliminary questions be tried and I gave directions accordingly. There was no appeal from that order. Now that the matter is to be remitted to another court, Mr. Handley asks me to vacate that order, or at least to indicate that the court to which the matter is to be remitted should be free to vacate it. Discovery and interrogations have, in accordance with my order, been directed to the preliminary issues only and the plaintiff, at least, has prepared for the hearing of those issues. The preliminary issues raise questions of great practical importance to the State of New South Wales. I see no reason why my order should be varied.

1. Remit the whole of Matter 88 of 1983 to the Federal Court of Australia.

I make no order with respect to the order for directions made on 8 December 1983.