Sydney Seaplanes Pty Ltd v Page - [2021] NSWCA 204 - NSWCA 2021 case summary — Zoe

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Sydney Seaplanes Pty Ltd v Page

[2021] NSWCA 204

Court of Appeal (NSW)|2021-06-07|Before: Bell P, Leeming JA, Adamson J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2021-06-07

Before

Bell P, Leeming JA, Adamson J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

the conferral of jurisdiction held to be invalid by the High Court TRAFFIC LAW AND TRANSPORT - aviation - carriage by air - death or personal injury - intra-state carriage by air occurring entirely within New South Wales - where party brought claim under s 5 of the Civil Aviation (Carriers' Liability) Act 1967 (NSW) in the Federal Court - where Federal Court lacked jurisdiction to decide claim - claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) - whether order of the Federal Court dismissing claim for want of jurisdiction was a "relevant order" within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) TRAFFIC LAW AND TRANSPORT - aviation - statutory liability - limitation of actions - characterisation of statutory bar - whether s 34 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) is a "limitation law" within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) WORDS AND PHRASES - "relevant order" - Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) WORDS AND PHRASES - "limitation law" - Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) Legislation Cited: Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Admiralty Act 1988 (Cth) Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW) s 19(1) Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 27(1), 28, 31, 34, 35, pts IV and IVA Civil Aviation (Carriers' Liability) Act 1967 (NSW) ss 4-6A, 11 Corporations (New South Wales) Act 1990 (NSW) Customs Act 1901 (Cth) s 167 Fair Trading Act 1999 (Vic) Federal Court Rules 2011 (Cth) r 13.01 Federal Courts (Consequential Provisions) Act 2000 (NSW) sch 1.6 item 1 Federal Courts (State Jurisdiction) Act 1999 (NSW) ss 1(2), 3-14, 17 Freedom of Information Act 1982 (Cth) Interpretation Act 1987 (NSW) ss 33, 34(1) Judiciary Act 1903 (Cth) ss 38, 39 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 4 Ombudsman Act 1976 (Cth) Privacy Act 1988 (Cth) Service and Execution of Process Act 1992 (Cth) Wrongs (Public Contracts) Act 1981 (Vic) Commonwealth Constitution ss 75, 76, 77, 109 Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed 12 October 1929, [1929] ICAO (entered into force 13 February 1933) Federal Courts (State Jurisdiction) Bill 1999 (NSW) Cases Cited: Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39 Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; [1993] HCA 16 Australian Health and Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13 Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 Australian Securities & Investments Commission v Singapore Liason Pty Ltd [2000] FCA 226 AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (2010) 78 NSWLR 302; [2010] NSWCA 81 Birch v Allen (1942) 65 CLR 621; [1942] HCA 17 Blacker v National Australia Bank Ltd [2000] NSWSC 805; (2000) 158 FLR 142 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Cachia v Isaacs (1985) 3 NSWLR 366 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Clunies-Ross v Commonwealth (1984) 155 CLR 193; [1984] HCA 65 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 Commissioner of Taxation v Comber (1986) 10 FCR 88 Commonwealth v Genex Corporation Pty Ltd (1992) 176 CLR 277; [1992] HCA 65 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22; [1985] HCA 69 Duncan v Theodore (1917) 23 CLR 510; [1917] HCA 38 Fearnley v Finlay [2014] 2 Qd R 392; [2014] QCA 155 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Gibson & Howes v Lennon (1917) 24 CLR 140; [1917] HCA 74 Gould v Brown (1998) 193 CLR 346; [1998] HCA 6 Gregory v Torquay Corporation [1911] 2 KB 556 Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately On Board The Ship "Offshore Guardian" [2020] FCA 273 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 Kelly v The Queen (2004) 219 CLR 216; [2004] HCA 12 Kent v SS "Maria Luisa" (No 1) (2002) 130 FCR 1; [2002] FCA 1207 Kent v SS "Maria Luisa" (No 2) (2003) 130 FCR 12; [2003] FCAFC 93 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; [1991] HCA 56 Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (1999) 94 FCR 384; [1999] FCA 1572 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; [2004] HCA 14 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Page v Sydney Seaplanes Pty Ltd (2020) 277 FCR 658; [2020] FCA 537 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212; [2019] HCA 14 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 Randjelovic v Threlfall [2012] FCA 1331 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21 Sargood Bros v The Commonwealth (1910) 11 CLR 258; [1910] HCA 45 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Telstra Corporation Ltd v Worthing (1999) 197 CLR 1; [1999] HCA 12 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Thomas v New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 Timeny v British Airways plc (1991) 56 SASR 287 Van Heerden v Hawkins [2016] WASCA 42 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54 Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82 Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390 Texts Cited: A M Gleeson, "Statutory Interpretation", Justice Hill Memorial Lecture, Taxation Institute of Australia, Sydney, 11 March 2009 D McClean et al, Shawcross and Beaumont: Air Law (4th rev ed, 2005, LexisNexis UK) F A R Bennion, Bennion on Statutory Interpretation (5th ed, 2008, LexisNexis Butterworths) J Campbell and R Campbell, "Why Statutory Interpretation is Done as it is Done" (2014) 39 Australian Bar Review 1 M J Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 June 1999 New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 July 1999 Category: Principal judgment Parties: Sydney Seaplanes Pty Ltd t/as Sydney Seaplanes (Applicant) Alexander Mathew Brodie Page (Respondent) Representation: Counsel:

[5]

HEADNOTE [This headnote is not to be read as part of the judgment] On 31 December 2017, a seaplane departing Cottage Point and bound for Rose Bay crashed, resulting in the death of Ms Heather Bowden-Page (Ms Page). The aircraft was operated by the Applicant, Sydney Seaplanes Pty Ltd (Sydney Seaplanes). On 18 December 2019, less than two years after the fatal accident, the Respondent (Mr Page), who is the father of Ms Page, commenced proceedings in the Federal Court of Australia seeking damages under ss 28, 31 and 35 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Commonwealth Act), as incorporated into New South Wales law by s 5 of the Civil Aviation (Carriers' Liability) Act 1967 (NSW) (the NSW Act). Section 34 of the Commonwealth Act requires that a person bring an action for damages under Part IV of that Act within two years of the date of the relevant accident, as a failure to do so would result in the "extinguishment" of a person's right to damages under the Act. The Federal Court had no jurisdiction to entertain the claim as the fatal flight took place wholly within New South Wales. Griffiths J so held in Page v Sydney Seaplanes Pty Ltd (2020) 277 FCR 658; [2020] FCA 537. By the time of Griffiths J's decision, more than two years had elapsed since the fatal accident. Consequently, the simple course of commencing fresh proceedings in the Supreme Court of New South Wales under the NSW Act was not available to Mr Page. Instead, in a Summons filed in the Common Law Division of the Supreme Court of New South Wales, Mr Page relied upon s 11 of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (the State Jurisdiction Act) to have the proceeding dismissed by Griffiths J "treated as a proceeding in the Supreme Court". The State Jurisdiction Act, which was enacted in response to the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 (Wakim), provides in s 11(2) that "a person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order". A "relevant order" was defined in s 11(1) as "an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction". A "State matter", for the purposes of s 11(1), was relevantly defined in s 3 as a matter "in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a Territory", or a matter "in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court". The NSW Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) were each deemed to be a "relevant State Act" in s 3 of the State Jurisdiction Act. There was no question that the order of Griffiths J dismissing Mr Page's Federal Court proceeding fell within the literal meaning of a "relevant order" under s 11 of the State Jurisdiction Act. On this basis, Adamson J (the primary judge) made an order, under s 11(2) of the State Jurisdiction Act, that the Federal Court proceeding be treated as a proceeding in the Supreme Court. It followed, by virtue of s 11(3), that it became a proceeding in the Supreme Court and, for the purposes of s 34 of the Commonwealth Act, was deemed to have been brought in the Supreme Court on the day on which it commenced as a proceeding in the Federal Court, which was within the two-year period stipulated in s 34. Sydney Seaplanes filed a Summons seeking leave to appeal against the primary judge's order. The principal issues on appeal were: 1. whether the order made by Griffiths J dismissing the Federal Court proceedings for want of jurisdiction was a "relevant order" within the meaning of s 11 of the State Jurisdiction Act (ground 3 on appeal); 2. whether s 34 of the Commonwealth Act, as applied to intra-state air carriage by s 5 of the NSW Act, was a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act (ground 4); and 3. whether s 34 of the Commonwealth Act was inconsistent, either directly or indirectly, with s 11(3)(b) of the State Jurisdiction Act (grounds 1 and 2). The Court held (Bell P, Leeming JA and Emmett AJA), granting leave to appeal, allowing the appeal with costs and setting aside the orders of the primary judge: As to issue 1 (ground 3) Per Bell P; Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]: 1. The order dismissing the Federal Court proceedings for want of jurisdiction was not a "relevant order" for the purposes of s 11(1). When one has regard to the context and purpose of the State Jurisdiction Act, both as explicitly stated and as is evident from a consideration of its terms as a whole including its long title, the specific context in which it was passed, namely the immediate aftermath of the decision in Wakim, and the mischief it was intended to address, it is an unavoidable conclusion that s 11(1) refers to the "want of jurisdiction" by reason of a constitutionally invalid conferral of jurisdiction as addressed in Wakim. This construction is reinforced by the explanatory memorandum and the second reading speech accompanying the Bill which led to the passage of the Act: [53]. Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, discussed. 1. The construction of the State Jurisdiction Act on the literal reading applied by the primary judge "does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions", particularly when taken in conjunction with a broader consideration of context and extrinsic materials which shed a particularly clear light on the relevant purpose of s 11 of the State Jurisdiction Act: [58]. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied. Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered. 1. Discussion of the modern approach to statutory construction, whereby the literal meaning of words in a statute will not always correspond to their legal meaning, and whilst the process of statutory construction must start and end with a consideration of the statutory text, elements of context, including legislative purpose and history, must be considered in the first instance and in a broad sense: [25]-[41]. Per Leeming JA; Bell P agreeing at [6]; Emmett AJA agreeing at [169]: 1. While remedial legislation such as the State Jurisdiction Act is to be given a broad, beneficial construction, that principle is not a trump which overrides all other principles of statutory construction, and does not produce the result that purpose and context are to be disregarded when determining legal meaning. To this effect, the principle that remedial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively: [85], [97]. Commissioner of Taxation v Comber (1986) 10 FCR 88; Commonwealth v Genex Corporation Pty Ltd (1992) 276 CLR 277; [1992] HCA 65; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67; Blacker v National Australia Bank Ltd [2000] NSWSC 805; (2000) 158 FLR 142; New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50, considered. 1. The words "purports or purported" in the definition of "State matter" in s 3 of the State Jurisdiction Act are significant. For the purposes of s 11, there will be a proceeding relating to a "State matter" if, at the time the proceeding commenced, the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer jurisdiction on a federal court: [112]-[114]. 2. Notwithstanding the prima facie breadth of the term "want of jurisdiction" in s 11 of the State Jurisdiction Act, it is to be understood as referring to an absence of subject matter, rather than personal, jurisdiction: [117]-[120]. Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 240 CLR 247; [2012] HCA 33, cited. 1. The purpose of the State Jurisdiction Act was to address, urgently, cases where judgments and orders had been made in proceedings commenced in reliance upon the validity of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), and pending proceedings which had been commenced on that basis, in circumstances where the High Court ruled that section to be invalid in Wakim: [130]-[132]. Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; Gould v Brown (1998) 193 CLR 346; [1998] HCA 6, considered. 1. Textual and contextual considerations point to "relevant order" in s 11(1) of the State Jurisdiction Act bearing a narrower meaning than that which was given to it by the primary judge. Textually, the substantial similarity between the definitions of "State matter" in s 3 of the State Jurisdiction Act and in the cross-vesting legislation confirms that the State Jurisdiction Act was a response to the decision in Wakim, as does the confinement of "want of jurisdiction" in s 11(1) to subject matter jurisdiction: [138]. 2. Contextually, the State Jurisdiction Act was (in the words of the then Attorney-General) a "stopgap measure". Its purpose was to respond to the change in the law effected by the decision in Wakim. There is nothing to suggest that its purpose extended to proceedings commenced two decades after Wakim was delivered, in order to benefit all plaintiffs who commenced proceedings in federal courts without jurisdiction for any reason whatsoever: [139]. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, cited. 1. If the definition of "relevant order" in s 11(1) of the State Jurisdiction Act is given its literal meaning, its application will give rise to capricious outcomes which are, on conventional principles of statutory construction, to be avoided: [140]-[141]. 2. It is no small thing for the Parliament to create a retrospective fictional proceeding in the Supreme Court by way of statute, which must be construed in light of the purpose for which it was introduced. On such a construction of s 11(1), it is difficult to justify the operation of such an extreme measure as a safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction: [142]-[143], [145]-[146]. Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67, applied. Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3, cited. 1. It may not be often that a court will depart from the literal meaning of a statutory provision in order to give effect to an imputed intention and to promote the legislative purpose. The present is such a case, by reason of the countervailing considerations summarised above: [144]. Per Emmett AJA; Leeming JA agreeing at [147]: 1. Section 11 of the State Jurisdiction Act was not intended to operate otherwise than to preserve the effect of orders made by federal courts in the purported exercise of jurisdiction invalidly conferred on them by a "relevant State Act". The Federal Court proceedings commenced by Mr Page were instead dismissed for want of jurisdiction because that Court never had jurisdiction to award damages under the NSW Act: [168]. As to issue 2 (ground 4) Per Bell P; Emmett AJA agreeing at [169]; Leeming JA dismissing this ground for separate reasons at [148]: 1. Section 34 of the Commonwealth Act, as given effect by s 5 of the NSW Act, was not a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act, in view of the clearly recognised and longstanding distinction between statutory provisions barring a right of action to obtain a remedy, and those operating to extinguish a right of action if certain requirements are not met: [70]. Timeny v British Airways plc (1991) 56 SASR 287; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38; McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; [1991] HCA 56; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13; Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39; Gregory v Torquay Corporation [1911] 2 KB 556; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, considered. As to issue 3 (grounds 1 and 2) Per Bell P; Emmett AJA agreeing at [169]; Leeming JA not deciding: 1. There was no inconsistency, whether direct or indirect, between s 34 of the Commonwealth Act and s 11(3)(b) of the State Jurisdiction Act as the primary judge's order did not undermine the purpose of the former. Although the Supreme Court proceedings under s 11(2) were "new" or "fresh" proceedings, they were for the same action as was wrongly commenced in the Federal Court and therefore did not cease to have all or any relevance. This was not a case involving a discretionary extension of time within which to bring a proceeding that was otherwise out of time: [79]-[82]. Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33; South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34; Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82; Telstra Corporation Ltd v Worthing (1999) 196 CLR 392; [1999] HCA 12; Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5, considered.

[6]

Judgment

BELL P: The Convention for the Unification of Certain Rules Relating to International Carriage by Air [1929] ICAO, signed at Warsaw on 12 October 1929 and entered into force on 13 February 1933 (the Warsaw Convention), was designed to regulate the liability of commercial air carriers in relation to the carriage of persons, luggage and goods.
The municipal implementation of the Convention in Australia could not be described as a model of legislative elegance although that, in part, is to be explained by perceived constitutional constraints at the time it took place: see, for example, Airlines of New South Wales Pty Ltd v New South Wales (No 2) 1965 113 CLR 54; [1965] HCA 3. This resulted in parallel regimes at Commonwealth and State levels: Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Commonwealth Act); Civil Aviation (Carriers' Liability) Act 1967 (NSW) (the NSW Act); and see Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212; [2019] HCA 14 at [53] (South West Helicopters).
The perceived constitutional constraints were reflected in s 27(1) of the Commonwealth Act which provides that Part IV of that Act applies to the carriage of a passenger: "where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger: (a) between a place in a State and a place in another State; (b) between a place in a Territory and a place in Australia outside that Territory; (c) between a place in a Territory and another place in that Territory; or (d) between a place in Australia and a place outside Australia; not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies."
Section 5 of the NSW Act broadly provides that the provisions of Parts IV and IVA of the Commonwealth Act (other than ss 27, 40, 41 and 41J (8)) "apply to and in relation to carriage to which this Act applies and matters connected with the carriage, as if those provisions were incorporated in this Act". Again broadly speaking, the NSW Act applies to commercial air carriage within New South Wales: see s 4 of the NSW Act.
These Acts, together with analogues of the NSW Act in other states, have spawned much litigation over the years: see, for example, Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 (Agtrack); Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39 (Airlink); and South West Helicopters.
The current application for leave to appeal presents another chapter in that history but the complexity of the matter is increased in the present case by considerations of federal jurisdiction, as will be explained below and as is explored in further detail in the reasons of Leeming JA which I have had the benefit of reading and with which I agree.
The starting point is the tragic death of Ms Heather Bowden-Page (Ms Page) on 31 December 2017 in a seaplane accident in the course of a flight between Cottage Point in New South Wales and Rose Bay in New South Wales. The doomed flight was operated by the Applicant (Sydney Seaplanes).
On 18 December 2019, Ms Page's father (Mr Page), who is the Respondent to this application, commenced proceedings in the Federal Court of Australia seeking damages. Paragraphs 6 and 7 of the Statement of Claim pleaded that: "The Applicant brings this action for damages against the Respondent pursuant to S.28, S.31 and S.35 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth), as incorporated by S.5 of the Civil Aviation (Carriers' Liability) Act 1967 (NSW). The Respondent is strictly liable under the provisions of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) and Civil Aviation (Carriers' Liability) Act 1967 (NSW) to pay damages to the Applicant for the loss and injuries sustained as a result of the death of the deceased."
Section 28, which falls within Part IV of the Commonwealth Act (see [4] above), provides that: "Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Section 31 of the Commonwealth Act places certain monetary limits on the liability of a carrier in respect of each passenger, by reason of his or her injury or death resulting from an accident. Section 35(3) relevantly provides that "the liability is enforceable for the benefit of such of the passenger's family members as sustained damage by reason of his or her death" and s 35(6) that "[t]he action to enforce the liability may be brought by the personal representative of the passenger or by a person for whose benefit the liability is, under the preceding provisions of this section, enforceable".
Critically for present purposes, s 34 of the Commonwealth Act provides that: "The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination: (a) the date on which the aircraft ought to have arrived at the destination; or (b) the date on which the carriage stopped; whichever is the later."
Of s 34 of the Commonwealth Act, the plurality in Agtrack said (at [59]): "Section 34 of the Carriers' Act … is an integral part of the federal statutory right to damages. Section 34 is not a provision which adds a time limitation in respect of a right defined independently of s 34. Section 28 which creates the statutory right expressly does so "[s]ubject to this Part" and thus to s 34. It follows that, if an action was not brought by Mrs Hatfield or for her benefit within the two year period required by s 34, what ensued was not the expiry of a relevant period of limitation, but the removal of a prerequisite for the existence of the right sought to be litigated." (emphasis added)
Mr Page, or more likely his legal advisers, made a mistake in commencing proceedings in the Federal Court. That Court had no jurisdiction to entertain the claim as the fatal flight took place wholly within New South Wales, and Griffiths J so held, dismissing the amended originating application on the basis of want of jurisdiction: Page v Sydney Seaplanes Pty Ltd (2020) 277 FCR 658; [2020] FCA 537. As his Honour stated at [32]: "The fundamental flaw in the applicant's position is that any purported federal claim raised in the amended statement of claim is entirely misconceived for the simple reason that the rights and liabilities created by that legislation do not apply to an intra-state flight. The position is unchanged simply because it appears that the applicant also brings a claim under the NSW CACL Act. That is because, as Leeming JA pointed out in Stephenson, a claim under the applied provisions does not of itself create a matter in federal jurisdiction. Rather, such a claim arises under State law and not Commonwealth law, which is only made applicable by s 6A. It goes without saying that, following Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511, the State could not vest State jurisdiction in a federal court." His Honour continued at [34]-[35] as follows: "Having regard to the terms of s 27 of the Cth CACL Act, the liability imposed by s 28 does not apply directly to an intra-state flight by force and operation of that Commonwealth legislation. Rather, liability in respect of an intra-state flight arises as result of s 5 of the NSW CACL Act, by reference to the terms of s 4 of that State legislation. … the Court has no jurisdiction in respect of a claim for damages based upon s 28 of the Cth CACL Act which relates to an intra-state flight."
What, if anything, could be done?
The simple expedient of commencing fresh proceedings in the Supreme Court of New South Wales under the NSW Act was not available as that Act required any action to be commenced within two years of the accident: s 34 of the Commonwealth Act, as incorporated into the NSW Act by s 5 of the NSW Act. More than two years had passed, however, by the time of the Federal Court decision which was delivered on 24 April 2020.
Mr Page's lawyers filed a Summons in the Common Law Division of the Supreme Court seeking the following orders: "1. The Federal Court proceeding NSD 2138/2019 be treated as a proceeding in the Supreme Court pursuant to section 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW); 2. The Federal Court proceeding NSD 2138/2019 be recorded by the Supreme Court as a proceeding in the Supreme Court; 3. The Federal Court proceeding NSD 2138/2019 is deemed to have been brought in the Supreme Court on the date on which the proceeding was first recorded as a proceeding in the Federal Court (being 23 December 2019)."
On its face, that forensic course of action looked propitious. Section 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (State Jurisdiction Act) provides that: "A person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order."
"Relevant order" is defined as meaning "an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction": s 11(1) of the State Jurisdiction Act.
"State matter" is defined in s 3 of the State Jurisdiction Act as meaning a matter in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a territory.
Section 11(3) of the State Jurisdiction Act provides that: "If the Supreme Court makes an order under subsection (2), the proceeding, despite the relevant order: (a) becomes, and must be recorded by the Supreme Court as, a proceeding in the Supreme Court, and (b) for the purposes of any limitation law and for all other purposes, is deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the federal court."
The primary judge (Adamson J) reasoned that s 11(2) of the State Jurisdiction Act was engaged on the basis that the judgment of Griffiths J dismissing the Federal Court proceeding for want of jurisdiction was a "relevant order": [2020] NSWSC 1502 at [62] (the primary judgment). Her Honour made an order that the Federal Court proceedings be treated as a proceeding in the Supreme Court with the consequence, under s 11(3) of the State Jurisdiction Act, that it became a proceeding in the Supreme Court and, for the purpose of any limitation law and all other purposes, was deemed to have been brought in the Supreme Court on the day on which it commenced as a proceeding in the Federal Court, namely on 23 December 2019. Critically, this was within the relevant two-year period.
Did this analysis provide a solution to the jurisdictional hiatus and dilemma that Mr Page found himself in following the decision of Griffiths J of the Federal Court?
Sydney Seaplanes, which seeks leave to appeal, contends that it did not for two essential reasons: 1. first, it says that the order of the Federal Court dismissing the proceedings for want of jurisdiction was not a "relevant order" within the meaning of the State Jurisdiction Act and that, on its proper construction, having regard to the context and purpose of the State Jurisdiction Act, the "want of jurisdiction" that was being referred to in the definition of "relevant order" in s 11(1) of that Act was a want of jurisdiction arising from the purported but constitutionally invalid conferral of jurisdiction on the Federal Court of Australia by a series of State Acts, all being Acts which, consequent upon the reasoning in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 (Wakim), were incapable of conferring jurisdiction on a federal court; 2. even if the order of the Federal Court dismissing Mr Page's application for want of jurisdiction was a "relevant order" within the meaning of s 11(1) of the State Jurisdiction Act (thus authorising the order made by the primary judge pursuant to s 11(2) of that Act), 1. s 34 of the Commonwealth Act, as picked up and applied to air carriage within New South Wales by s 5 of the NSW Act, is not a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act; and 2. in any event, s 34 is inconsistent with s 11(3)(b) of the State Jurisdiction Act, with the consequence that any proceeding ordered to be treated as a proceeding in the Supreme Court of New South Wales was not deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the Federal Court.
The first of these arguments is not addressed in any detail in the primary judgment although her Honour recognised that the State Jurisdiction Act owed its origin to the decision in Wakim (see at [22]-[23]) and, as noted above, concluded at [62] that the judgment of Griffiths J dismissing the Federal Court proceedings for want of jurisdiction was a "relevant order" within the meaning of s 11(1) of the State Jurisdiction Act. This conclusion was squarely challenged by ground 3 of the draft Notice of Appeal.
Mr McIlwaine SC, who appeared with Mr D Roberts for the Respondent, emphasised the literal meaning of the definition of "relevant order", embraced the remedial nature of the legislation and also made the point that, had Parliament intended to limit the operation of "relevant order" to cases where the Federal Court dismissed proceedings for want of jurisdiction by reason of the fact that there had been a constitutionally invalid conferral of jurisdiction following Wakim, it could and would have said so.

[7]

The applicable principles of statutory construction

There is no question that the order of Griffiths J dismissing Mr Page's claim in the Federal Court fell within the literal meaning of the definition of "relevant order" in the State Jurisdiction Act in that it was "an order of a federal court dismissing a proceeding relating to a State matter for want of jurisdiction".
The literal meaning of words in a statute will not always, however, correspond to their legal meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (Project Blue Sky)) and it is axiomatic that questions of statutory construction cannot be resolved merely by resort to the literal meaning of statutory language: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 at [77] (Park Trent).
The modern approach to statutory interpretation, as Sir Anthony Mason observed more than 35 years ago in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48, "insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise" (emphasis added). The importance of context has routinely been emphasised by the High Court in cases concerned with statutory interpretation: see, for example, Project Blue Sky at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (CIC); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; [2004] HCA 14 at [11]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (SZTAL).
More recent statements to the effect that the process of statutory interpretation must start and end with a consideration of the text of the statute (see, for example, Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [116]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (Consolidated Media); Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324] (Maloney); and Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 at [85]) were not intended to and did not demote or relegate the importance of context in the process of statutory interpretation: see, for example, Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [13]-[15]. As was said in Consolidated Media at [39]: "The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text."
In SZTAL, Kiefel CJ, Nettle and Gordon JJ observed at [14] that: "Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."
It has also been emphasised that "context" is to be understood in a broad sense and not confined to the immediate context supplied by other provisions in a statute of which one or more provisions are the subject of the immediate inquiry by the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy: see, for example, CIC at 408; Maloney at [324]; SZTAL at [14].
Words, whether used in a statute or more generally, always exist in and take their meaning from the particular context in which they are used. That context may expose any mischief which a statute is directed towards redressing and may reveal the purpose underpinning the enactment. That purpose, in turn, guides the preferred meaning to be given to the words being construed. The process of statutory interpretation may thus be seen as a holistic one or, as Campbell JA has identified both judicially and extra-judicially, as one involving something akin to hermeneutic reasoning: see Thomas v New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 at [22]; Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390 at [118]; AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (2010) 78 NSWLR 302; [2010] NSWCA 81 at [133]-[137]; and J Campbell and R Campbell, "Why Statutory Interpretation is Done as it is Done" (2014) 39 Australian Bar Review 1.
In SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Miles), citing Gageler and Keane JJ in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [66] (Taylor) and Gageler J in SZTAL at [38], the plurality said: "Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies." (emphasis added)
Emphasis on the importance of context in statutory interpretation at least overlaps with and reinforces the need for purposive construction. This is not so much a matter of "constructional choice" as legislative fiat because, by s 33 of the Interpretation Act 1987 (NSW), and its Commonwealth analogue (s 15AA of the Acts Interpretation Act 1901 (Cth)), it is provided that: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
Section 33 recognises that a statutory purpose or object may not always be found in the express terms of the statute being construed. As McHugh J observed in Saraswati v The Queen (1991) 172 CLR 1 at 21; [1991] HCA 21: "Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes."
Some statutes will identify the "Objects of the Act" or of a Part or Division of the Act. Others will explicitly spell out the purpose of the Act. These are not "exercise[s] in apologetics" but may give practical content to particular terms used in a statute which may otherwise be elastic in their meaning: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5].
It will not, however, always be easy to identify or discern the purpose of any given statute or statutory provision, and care must be taken against ascribing an overly broad purpose based upon a priori assumptions as to the legislation's intended reach: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [28]. Furthermore, a statute may have multiple purposes and, as enacted, may (and often will) give effect to political and policy compromises such that the legislative purpose, whatever may have been intended originally, is obscured: see, for example, Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 at [31]. As A M Gleeson observed soon after his retirement from the bench (A M Gleeson, "Statutory Interpretation", Justice Hill Memorial Lecture, Taxation Institute of Australia, Sydney, 11 March 2009): "Much legislation, including revenue legislation, involves compromise. Parliaments rarely pursue a single purpose at all costs. The problem of interpretation may be to decide how far Parliament has gone. Its general purpose may be clear enough, but the dispute may be as to the extent to which it has pursued that purpose. In such a case, to identify the general purpose may not be of assistance in finding the point at which a balance has been struck or a political compromise reached."
The purpose of a statute may also be expressed with such generality that it is not a useful or completely satisfactory guide to a court seeking to construe a particular statutory provision: Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54 at [33]. On the other hand, the nature and context of a particular statute's enactment may reveal its purpose.
One example of this will be where a statute is passed in order to reverse, negate or accommodate the effect of a particular judicial decision. Examples of cases involving the interpretation of legislation which has been passed to reverse or accommodate dicta in judicial decisions can be multiplied but they include Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 (Residual Assco) and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [32], in which the High Court noted that amendments to s 167 of the Customs Act 1901 (Cth) under consideration in that case were an "immediate prophylactic response to the spectre of widespread fiscal confusion raised by Isaacs J" in Sargood Bros v The Commonwealth (1910) 11 CLR 258 at 301-303; [1910] HCA 45.
The purpose of a statute or statutory provision, or the "mischief" which a statute is intended to address, may sometimes also be identified in an explanatory memorandum to a parliamentary bill or in the second reading speech although these sources of potential enlightenment, particularly the explanatory memorandum, are frequently of limited utility in this regard, often being little more than summaries or paraphrases of provisions of the bill. Although the occasions when such assistance will in fact be given have been said to be "rare", they nevertheless sometimes present themselves: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 605; [2011] HCA 10 at [86].
Statutory purpose may also be identified in the long title to an enactment: Duncan v Theodore (1917) 23 CLR 510 at 530; [1917] HCA 38; Gibson & Howes v Lennon (1917) 24 CLR 140 at 150; [1917] HCA 74; Birch v Allen (1942) 65 CLR 621 at 625-626; [1942] HCA 17; Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 199; [1984] HCA 65; and Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 at 477; [1993] HCA 16. See also Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196 at [194]-[195]; Fearnley v Finlay [2014] 2 Qd R 392; [2014] QCA 155 at [46]-[50]; Van Heerden v Hawkins [2016] WASCA 42 at [93]-[103]; and Kelly v The Queen (2004) 219 CLR 216; [2004] HCA 12 at [103].
Although s 34(1) of the Interpretation Act 1987 (NSW), which is in virtually identical terms to s 15AB of the Acts Interpretation Act 1901 (Cth), would appear to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the "ordinary meaning" of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead "to a result that is manifestly absurd or is unreasonable", the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53; Consolidated Media at [39], quoted in [28] above; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [8.160], [8.200].
It is with the foregoing principles in mind that attention is now turned to the State Jurisdiction Act and the meaning of the definition of "relevant order" in s 11(1) of that Act.

[8]

The proper construction of the State Jurisdiction Act

The State Jurisdiction Act contains an explicit statement of its purpose. Thus, in s 1(2), it provides that: "The purpose of this Act is to provide that certain decisions of the Federal Court of Australia or the Family Court of Australia have effect as decisions of the Supreme Court and to make other provision relating to certain matters relating to the jurisdiction of those courts."
The Long Title to the State Jurisdiction Act should also be noted. It is there described as "[a]n Act relating to the ineffective conferral of jurisdiction on the Federal Court of Australia and the Family Court of Australia with respect to certain matters" (emphasis added)
The "ineffective conferral of jurisdiction on the Federal Court of Australia and the Family Court of Australia" was a reference to the High Court's momentous decision in Wakim in which it was held that the component of the cross-vesting scheme by which federal courts were purportedly invested with jurisdiction by state legislation was unconstitutional: see, generally, M J Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at [4.4], [5.9]. By the time Wakim was delivered, the cross-vesting scheme had been in operation for more than a decade and many matters had been cross-vested from State Supreme Courts to the Federal and Family Courts with judgments subsequently delivered. Their efficacy was thrown into question by the decision. In addition, there were many matters pending in the Federal Court and Family Court the jurisdictional foundation for which disappeared by reason of what the majority in Wakim held to be the constitutionally invalid conferral of State jurisdiction.
This was the historical context in which the State Jurisdiction Act was enacted. It was remedial legislation squarely and urgently directed to addressing the consequences of Wakim.
The State Jurisdiction Act itself survived a constitutional challenge in Residual Assco. The opening sentence of the majority's decision in that case also recognised the remedial nature of the legislation as being inextricably tied to the decision in Wakim.
So much is also reflected in the terms of the Act considered as a whole. Thus, s 4(1) supplies a definition of "ineffective judgment" as a "reference to a judgment of a federal court in a State matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act" (emphasis added). Section 6 of the Act provides that the "[r]ights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if each ineffective judgment of the Federal Court or the Family Court had been a valid judgment of the Supreme Court in a Division constituted by a Judge of the Supreme Court." The intended effect of this section is further reinforced by s 7 which deems an ineffective judgment to be a judgment of the Supreme Court supplying a right to appeal (to this Court) from the judgment. Section 8 of the Act validates actions taken in accordance with or in reliance upon the ineffective judgment as if such acts were done (or not done) to "give effect to, or under the authority of, or in reliance on, a judgment of the Supreme Court". Section 10 of the Act continues what is effectively the legislative assimilation of ineffective federal judgments by affording the Supreme Court the power to "vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 6 as if it were a right or liability conferred, imposed or affected by the Supreme Court in or in relation to proceedings of the kind in or in relation to which the ineffective judgment was given or recorded."
Whereas ss 6-10 of the State Jurisdiction Act are directed to "ineffective judgments" of the Federal Court and the Family Court, s 11 is directed to a proceeding in either of those courts in which an order is made, whether before or after the commencement of the section, that the relevant federal court has no jurisdiction to hear and determine it on the basis that it relates to a State matter. Such an order, being a "relevant order", could be effectuated either by means of a declaration to that effect or by an order dismissing, striking out or staying the proceeding relating to a State matter for want of jurisdiction. As the majority in Residual Assco observed at [8]-[10], such an order is not itself an ineffective judgment within the meaning of the State Jurisdiction Act.
The specific remedial character of the State Jurisdiction Act was also made plain in the explanatory memorandum to the Bill which led to the passage of the Act and in the second reading speech. It is not without significance that the Federal Courts (State Jurisdiction) Bill 1999 was introduced within a week of the High Court's decision in Wakim, manifesting an urgency which highlighted its very specific remedial purpose. The explanatory memorandum, after making reference to Wakim, stated that: "This decision has implications not only for the cross-vesting schemes (where provision is made for the cross-vesting of jurisdiction in a wide range of cases and specifically under the Corporations Law, and under which State jurisdiction has been conferred on the Federal Court and the Family Court), but also for certain of the applied law schemes (where laws of another jurisdiction are applied as State law, and under which State jurisdiction has been conferred on the Federal Court). The objects of this Bill are: (a) to provide that existing ineffective judgments of a federal court in the purported exercise of State jurisdiction are taken to be judgments of the Supreme Court, and (b) to provide for the transfer of current proceedings before a federal court in relation to State matters to the Supreme Court, and (c) to enable State courts to deal with matters that arise under applied law schemes and that would otherwise have been dealt with by a federal court. The existing schemes will continue to apply to the courts referred to in them, except federal courts to the extent that the laws establishing the existing schemes are incapable of applying to federal courts."
To similar effect, in the second reading speech, it was said that the effect of Wakim "is to invalidate decisions previously made by the Federal Court and the Family Court relying purely on cross-vesting arrangements and to prevent the further exercise of such jurisdiction by those Federal courts" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 June 1999 at 1408). After noting the wide-ranging impact of the High Court's decision and that the Bill had been prepared through the Standing Committee of Attorneys General and was a model which all States would follow, it was noted that: "The bill declares that the rights and liabilities under a current judgment of the Federal Court or Family Court, including current judgments of the full Federal Court or the full court of the Family Court of Australia, in the purported exercise of State jurisdiction, are the same as if it had been a valid judgment given by the Supreme Court. The bill specifically provides that such rights and liabilities are exercisable and enforceable as if they were rights and liabilities under judgments of the Supreme Court. Similarly, any acts or omissions in relation to such rights and liabilities are taken to have the same effect and consequences as if occurring under a judgment of the Supreme Court. The Supreme Court is also given power to vary or otherwise deal with any such rights and liabilities. In addition, the bill provides a mechanism for the transfer to the Supreme Court of current proceedings in Federal courts relating to State matters where a Federal court determines that it has no jurisdiction to hear the State matters." (emphasis added)
The primary judge stated at [77] of her judgment that "[t]he effect of s 11 of the State Jurisdiction Act, as explained by the High Court in Residual Assco, is to remedy the consequences of the Federal Court's lack of jurisdiction in State matters." That statement was, with respect, overly broad. The remedial purpose of the Act was far more specific and immediate than that; it was inextricably tied to the very recent and practically disruptive decision in Wakim. As Mr Lloyd SC, who appeared for the Applicant, put in oral address, it was a "much narrower mischief" to which the State Jurisdiction Act was directed than that identified by the primary judge.
When one has regard to the context and purpose of the Act, both as explicitly stated and as is evident from a consideration of its terms as a whole including its long title, the specific context in which it was passed, namely the immediate aftermath of the decision in Wakim, and the mischief which it was intended to address, all reinforced by the explanatory memorandum and the second reading speech, it seems to me to be unavoidable that, where the defined term "relevant order" refers to a decision of the Federal Court "dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction", the want of jurisdiction being referred to is not any general want of jurisdiction but rather a want of jurisdiction by reason of a constitutionally invalid conferral of jurisdiction of the kind addressed in Wakim.
In the present case, the Federal Court never had jurisdiction to entertain a case involving a claim for damages in relation to an intra-state air carriage of the kind brought by the Respondent. The State Jurisdiction Act was not directed to a situation where a party simply invoked the jurisdiction of the Federal Court by mistake.
In this context, one curiosity should be observed. Included in the definition of "relevant State Act" in s 3 of the State Jurisdiction Act is the Civil Aviation (Carriers' Liability) Act 1967 (NSW), referred to earlier in these reasons as the NSW Act. Unlike other Acts identified in s 3 of the State Jurisdiction Act, as originally passed, the NSW Act did not ever purport to confer jurisdiction on the Federal Court, cf for example, s 19(1) of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW) or the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). In this context, I do not read s 6A(1) of the NSW Act, providing that "[i]t is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State", as purporting to confer jurisdiction on the Federal Court, and no suggestion was made in argument that it did. In the same vein, s 6A(3) which provides that "[i]n the application of provisions of the Commonwealth Act and the Commonwealth Regulations under this Act, any function or power conferred on a Commonwealth authority by or under those provisions may be exercised or performed (in respect of carriage to which this Act applies and matters connected with that carriage) by that Commonwealth authority" does not, in my opinion, purport to confer jurisdiction on the Federal Court, it not being a "Commonwealth Authority".
Mr McIlwaine's argument that the State Jurisdiction Act was remedial and should be given a benign construction does not relieve the Court from giving effect to an interpretation of that Act that furthers what the Court objectively determines to have been its purpose. That purpose, as I have said, is clear and dictates that, although the legislation is beneficial, its remedial nature and the mischief to which it was directed was quite specific and much narrower than the primary judge appears to have considered to be the case. It has the consequence that this is a case where the literal meaning of the definition of "relevant order" must be read down and in a way that is consistent with the purpose of the Act and the definition of "ineffective judgment", which is directed to a case where the jurisdiction of the federal court in question has been purportedly but ineffectively conferred by a relevant State Act. The Federal Court's want of jurisdiction in the present case did not arise from such a circumstance.
The statutory context, encompassing legislative purpose and history, sometimes requires the literal or ordinary meaning of words to be read more narrowly than they may, on a first review and when regard is had solely to the text of the legislation, appear to be appropriate. As Gageler and Keane JJ said in Taylor at [65], context sometimes involves reading statutory text as containing words of limitation. The High Court's decision in Miles and that of this Court in Park Trent supply instances of such an approach. As the plurality stated in CIC at 408: "Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance."
To adapt the language of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26, the construction of the State Jurisdiction Act on the literal reading preferred by the primary judge "does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions", particularly when taken in conjunction with a broader consideration of context and extrinsic materials which, in this case, shed a particularly clear light on the relevant statutory purpose.
For these reasons, the third ground of appeal, which it was logical to deal with first, should be upheld. It follows that leave to appeal should be granted, the appeal should be allowed and the orders of the primary judge should be set aside.

[10]

The characterisation argument

The Applicant argued that s 34 of the Commonwealth Act was not a limitation law within the meaning of that term as used in s 11(3) of the NSW Act because it was a precondition to any right to seek damages under the applied provisions of the Commonwealth Act, implementing as it did art 29 of the Warsaw Convention, that such a claim be brought within two years of the relevant accident. Reference was made in this context to the plurality's endorsement in Agtrack at [49] of the statement in D McClean et al, Shawcross and Beaumont: Air Law (4th rev ed, 2005, LexisNexis UK) vol 1 at [443], with respect to art 29 of the Warsaw Convention, that "[i]f the right of action is 'extinguished', it would seem that it is completely destroyed and not merely rendered unenforceable by action." Reference was also made to the plurality's observation at [51] that there was a strong body of authority which held that art 29 imposed a condition "which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right". The plurality in Agtrack also referred with approval to the following observations of Bollen J, with whom the other members of the Court agreed, in Timeny v British Airways plc (1991) 56 SASR 287 at 297: "The two-year period is not a mere period of limitation operating at its expiration to bar a remedy. It is an integral part of a right. Some Courts have regarded it as a condition precedent to the exercise of the right. That is to say, the bringing of proceedings within the stated time is a condition precedent to the exercise of the right or of the obtaining of its benefit. I do not see it as a condition precedent. Perhaps I am playing with words. Be it an integral part or a condition precedent, failure to bring an action within that two years causes the right to be extinguished, to die, and to die beyond revival."
It was contended that a limitation law, properly understood, was a law which barred the remedy but did not extinguish the underlying right. The observations of the plurality in Agtrack at [59] in relation to s 34 of the Commonwealth Act, which have been extracted at [11] above, were also called in aid by the Applicant in support of its argument that s 34 was not a limitation law. It should be noted, however, that the Court was not there considering whether or not s 34 of the Commonwealth Act was a limitation law within the meaning of that term as defined in s 11(1) of the State Jurisdiction Act. That subsection defines a "limitation law" for the purposes of the State Jurisdiction Act as meaning: "(a) the Limitation Act 1969, or (b) any other law that provides for the limitation of liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced."
There is a well-recognised distinction between the extinguishment of a right and the barring of an action to enforce a right and obtain a remedy. In McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 at 44; [1991] HCA 56 (McKain), Mason CJ observed that "whether or not a distinction between a statute extinguishing a right and a statute barring an action to enforce the right be thought desirable, it is firmly and clearly established as a principle of law." In private international law, the conceptual distinction between these two types of provisions was traditionally used as the discrimen, for characterisation purposes, of such laws as either procedural (and thus governed by the law of the forum) or substantive (and thus governed by the law of the cause), as Mason CJ discussed in McKain at 40-44. This distinction for private international law purposes was, of course, swept away in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [97]-[100].
Statutes which bar an action to enforce a right have been described as statutes of limitation "properly so called" (Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488; [1962] HCA 13 (Hoogland) per Windeyer J) or "true" statutes of limitation (Commonwealth v Verwayen (1990) 170 CLR 394 at 497; [1990] HCA 39 per McHugh J). By the same token, statutes or provisions which extinguish a right have also been described as "limitation provisions annexed by a statute to a right newly created by it": Hoogland at 488. In Hoogland at 488, Windeyer J made reference to the decision of Pickford J (as he then was) in Gregory v Torquay Corporation [1911] 2 KB 556 at 559 (affirmed in [1912] 1 KB 442) where it was said that: "I do not think it right to hold that every statute which imposes a limitation upon a right of action is necessarily a statute of limitations. If a statute conferred a new right of action and also prescribed a limited time within which that right of action might be enforced, it may be that it could not be properly called a statute of limitations." The same passage was referred to by Williams J in Maxwell v Murphy (1957) 96 CLR 261 at 282; [1957] HCA 7.
At [65] of her decision, the primary judge held that: "While there is plainly a distinction, established by the authorities referred to above, between laws which bar a right of action and those which are effective to extinguish a right of action, I am not persuaded that this distinction is material to the classification of s 34 as a limitation law. Whether or not s 34 of the Commonwealth Carriers' Act bars a right of action, it limits the liability of the carrier by reference to the time when a proceeding on the claim is commenced. A carrier will, if other matters are established, be liable if the action has been brought within two years of the material date (in this case the death of the plaintiff's daughter). A carrier will not be liable if the action has been brought outside that time. Accordingly, I consider that the definition of limitation law in s 11(1) is apt to include s 34 of the Commonwealth Carriers' Act."
I respectfully disagree with her Honour's reasoning in this regard as there is a clearly recognised distinction in a wealth of authorities between the barring of a right of action and its extinguishment. Such a distinction was recognised by the plurality in Agtrack at [59], which has been extracted at [11] above. Section 34 of the Commonwealth Act is not, in my opinion, a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act.
On the other hand, as the primary judge went on to note at [66], subject to the inconsistency argument: "whether s 34 of the Commonwealth Carriers' Act is a 'limitation law' is not determinative since s 11(3) provides that the proceeding in the Supreme Court 'for the purposes of any limitation law and for all other purposes is deemed to have been brought in this Court on the day it was commenced in the Federal Court. Thus, even if s 34 were not a limitation law, the proceeding would still be deemed to have been brought in this Court on the day it was commenced in the Federal Court". (emphasis in original)
Her Honour's observation was undoubtedly correct, giving effect as it did to the plain words of s 11(3) of the State Jurisdiction Act. It would only be if s 11(2) and or (3) were in some way inconsistent with s 34 of the Commonwealth Act that it would not apply. It is to that argument that attention now turns.

[11]

The inconsistency argument

The starting point of this argument is to recognise: 1. in line with the decision of the High Court in Residual Assco, that when an order is made under s 11(2) of the State Jurisdiction Act, that does not result in the transfer of the jurisdictionally incompetent federal proceeding to the Supreme Court but results in (see at [27]) a new proceeding that is "linked to, but operating independently of, the federal court proceeding" (at [25]); and 2. in line with the observations of Basten JA and Leeming JA in Stephenson in this Court, that the effect of s 6A of the NSW Act is that s 34, as given effect by s 5 of the NSW Act, will prevail over s 11(3) if and to the extent of any inconsistency between them, notwithstanding that both are State enactments: see [63] above.
The primary judge's critical reasoning in relation to the inconsistency argument, fully and properly accepting the two matters referred to above, is contained in [79]-[80] as follows: "79 I am not persuaded that there is any inconsistency which cannot be resolved with due regard given to the precedence of s 34. While it must be accepted that the effect of the order made by Griffiths J was to bring the Federal Court proceedings to an end, in so far as the plaintiff claimed damages against the defendant for the death of his daughter, it does not follow that the proceedings in this Court ought be viewed as if there had never been proceedings in the Federal Court. Nor do I regard as persuasive the argument pressed by Mr Lloyd that, if the plaintiff's construction of s 11 is correct, the plaintiff would be entitled to claim damages in this Court ten years from now and be in the same position as in the present case where he commenced proceedings a matter of weeks after the dismissal of the Federal Court proceedings by Griffiths J. 80 It is plain from s 11(2) that this Court has a discretion whether to make an order under that section. Any delay between the order for dismissal and the commencement of proceedings in this Court would be germane to the exercise of the discretion. The decisions in Air Link and Agtrack also involved the exercise of discretion by a court. In those cases, the discretion was whether to allow an amendment to put beyond doubt that the plaintiff's claim was brought under the CACL Regime."
The essence of the Applicant's argument was that ss 11(2) and/or (3) of the State Jurisdiction Act in effect permit the Supreme Court, by the exercise of a discretion under s 11(2), to extend the time in which proceedings for damages under the NSW Act may be brought. This was said to be inconsistent with the operation of s 34 of the Commonwealth Act, indirectly applied as part of the NSW Act, because the effect of s 34 as a surrogate law of New South Wales was to extinguish any claim for damages under s 28 of the Commonwealth Act (as also given effect as a law of New South Wales by s 5 of the NSW Act) once two years had lapsed from the time of the accident or incident giving rise to the claim.
By analogy with well-established authority concerning the inconsistency of laws pursuant to s 109 of the Commonwealth Constitution, one law may be inconsistent with another either directly or indirectly: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 at [40]; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [242]-[244]. There may also be inconsistency of laws where one law alters, impairs or detracts from the operation of another law: Victoria v The Commonwealth (1937) 58 CLR 618 at 630; [1937] HCA 82; Telstra Corporation Ltd v Worthing (1999) 197 CLR 1; [1999] HCA 12 at [28]. Laws may also be inconsistent in their operation: Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5 at [61], [139].
The essence of the primary judge's reasoning was that "an action" was brought within two years of the fatal accident, albeit that the action was brought in a court which did not have jurisdiction to entertain it.
One can readily understand the purpose of a provision such as s 34 (and art 29 of the Warsaw Convention, upon which it is based) from the air carrier's perspective. It is to ensure that any claim against a carrier is known within a specific and relatively confined period of time. Section 34 (and art 29) say nothing, however, as to how quickly, once an action has been brought, it will or must be resolved.
The inconsistency argument raised by the Applicant does not admit of an easy answer. On balance, however, I do not consider that there is any inconsistency.
An action was commenced within two years, including an action under the NSW Act (see [8] above). That it was commenced in the wrong court, that is, one without jurisdiction to hear it, did not negate the fact of commencement. And although the proceeding brought in the Supreme Court is to be treated as a new proceeding in line with what was said by the High Court in Residual Assco, it is relevantly for the same action as was wrongly commenced in the Federal Court. The earlier proceeding does not cease to have all or any relevance.
If the federal proceeding was dismissed by a "relevant order", it is that earlier federal proceeding which effectively supplies the basis for the Supreme Court's power under s 11(2) to be exercised. In this context, s 11(3) deems the new proceeding to have been commenced at an earlier point in time than the application for an order under s 11(2) but it only operates to do so because and by reference to the earlier, jurisdictionally flawed, federal proceeding in which the action was brought within time. That is rather different from a discretionary extension of time within which to bring a proceeding otherwise out of time which is how the Applicant characterised the effect of the s 11(2) order that was made by the primary judge for the purposes of its inconsistency argument.
The order made by the primary judge pursuant to s 11(2), upon which s 11(3) operated, did not undermine the purpose of s 34 of the Commonwealth Act, as indirectly given effect by s 5 of the NSW Act, and was not, to that extent, inconsistent with it.
It may be that the Applicant's real point is that the primary judge should never have made the order under s 11(2) in the exercise of her discretion because, by that time, more than two years had passed since the fatal accident and the Federal Court proceedings had been dismissed such that no action remained on foot and a fresh action, out of time, was being attempted to be brought. But that is not how the inconsistency argument, as I understood it, was put.

[13]

Section 11 of the State Jurisdiction Act

I start with the statute. As Bell P and Emmett AJA observe, the State Jurisdiction Act was enacted promptly after the High Court's decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27. The result in Re Wakim was not unexpected. In the evenly split decision of Gould v Brown (1998) 193 CLR 346; [1998] HCA 6, three members of the High Court had held that State legislation could not validly confer jurisdiction which was not federal jurisdiction upon federal courts. The Minister's Second Reading speech (given two weeks after Re Wakim was delivered) states that the bill had been prepared through the Standing Committee of Attorneys-General, in conjunction with the Special Committee of Solicitors General and the Parliamentary Counsel's Committee, as a model which all States would follow: Parliamentary Debates (Hansard), LC, 1 July 1999, p 1813 (the Hon J W Shaw).
Most of the provisions in the State Jurisdiction Act deal with "ineffective judgments" as defined in s 4, which (speaking very generally) are treated as being valid judgments of the Supreme Court in a Division or in the Court of Appeal for the purpose of the existence of parties' rights and liabilities as stated in ss 6, 7, 8, 10 and 12.
Separately from the above, s 11 contains a deeming provision in relation to a "relevant order", which includes orders made after the commencement of the statute. That open-ended timeframe contrasts with "ineffective judgments", which are judgments of a federal court which were given or recorded before the commencement of the State Jurisdiction Act. It is the potential for a "relevant order" to be made after the commencement of the State Jurisdiction Act, unlike an "ineffective judgment" which can apply only to judgments given more than two decades ago, which gives rise to this appeal.
Section 11 is the only section in the statute which applies to "relevant orders". Section 11(2) empowers a person who was a party to a proceeding in which a relevant order was made to apply to the Supreme Court, and confers a power upon the Supreme Court to order that the proceeding "be treated as a proceeding in the Supreme Court". I shall return to this in due course. Section 11(3) provides: "(3) If the Supreme Court makes an order under subsection (2), the proceeding, despite the relevant order: (a) becomes, and must be recorded by the Supreme Court as, a proceeding in the Supreme Court, and (b) for the purposes of any limitation law and for all other purposes, is deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the federal court."
Thus the effect of an order being a "relevant order" is to enliven a power which if exercised will - and with retrospective effect - deem the entire proceeding to have been commenced in the Supreme Court at the time it was in fact commenced in the Federal Court.

[14]

Purpose so far as appears on the face of s 11

Of course, a proceeding which is dismissed for want of jurisdiction does not give rise to a res judicata or an issue estoppel, as McHugh JA explained in Cachia v Isaacs (1985) 3 NSWLR 366 at 387. The plaintiff can therefore ordinarily commence proceedings again in the Supreme Court. The purpose of the retrospective deeming effected by s 11 is not to avoid the cost of an additional filing fee.
One purpose, which is apparent on the face of the statute, concerns the operation of "any limitation law". Limitation laws generally turn upon the time at which an originating process is filed, and so one purpose of s 11 is to provide a regime whereby the commencement of proceedings in the Federal Court without jurisdiction is taken to have been the commencement of proceedings in the Supreme Court. Limitation laws may seem technical, but they reflect an important legal policy which recognises the unfairness that may be generated by delay, as this Court recognised in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 by reference to authorities including Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; [1996] HCA 25 and Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 at [41]. To the extent that s 11 is available, it cuts down that important legal policy, although to be fair, a defendant who is exposed to an out of time claim by reason of an exercise of the power in s 11 will be a defendant against whom proceedings were commenced within time in the Federal Court. In the present case application was made to the Supreme Court promptly after the Federal Court dismissed a claim made on the last day of term before the limitation period expired, but that will not always be the case.
The statute contemplates that there may be other purposes, too. Not infrequently, the time at which proceedings are commenced carries legal consequences (a recurring example is the operation of transitional provisions which vary substantive or procedural rights). But the present appeal is driven by the fact that Mr Page filed an originating process in the Federal Court days before the expiry of a limitation period.
Subsection 11(4) empowers the Supreme Court to make ancillary orders "as it considers necessary for the purposes of the proceeding being treated as, becoming and being recorded as, a proceeding in the Supreme Court". For example, orders made under s 11(4) producing the result that documents produced under compulsion pursuant to discovery or subpoenas in the Federal Court prior to the absence of jurisdiction being perceived may be taken to have been produced to the Supreme Court for the purposes of the implied Harman undertaking.
To reiterate, the effect of an order being a "relevant order" is to enliven a discretionary power conferred on the Supreme Court that will deem something to have occurred which did not in fact occur, namely, commencement of proceedings in the Supreme Court, and will do so for the purpose of enhancing the rights of the plaintiff and detracting from the rights of the defendant at least in relation to limitation defences and perhaps other areas too. I mention this because of a body of authority to the effect that deeming provisions are to be read strictly: see for example Fisher J's statement in Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 that "[i]t is improper in my view to extend by implication the express application of such a statutory fiction", which was reproduced in the joint judgment of seven members of the High Court in Commonwealth v Genex Corporation Pty Ltd (1992) 176 CLR 277 at 291-292; [1992] HCA 65.
Just as the resolution of this appeal does not turn on applying a broad construction merely because the provision is remedial, nor does it turn on applying a narrow construction merely because the provision creates a statutory fiction. As Griffith CJ said in Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696; [1909] HCA 67, in the latter case "it becomes very important to consider the purpose for which the statutory fiction is introduced". Likewise in the former case. The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively: New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [92]. Does the purpose of s 11 of the State Jurisdiction Act extend to applications such as the present? This aspect of the dispute, and the approach taken by the respondent, was encapsulated in the following exchange, based on what had been said in Blacker v National Australia Bank Ltd [2000] NSWSC 805; 158 FLR 142 at [14]: "MCILWAINE: ... [A]t [14] Young J said, 'The statute is remedial legislation. Its purpose is to ensure that citizens are prejudiced as little as possible by the constitutional hiccups referred to earlier. The statute should be given a benign construction.' EMMETT AJA: In the light of the evil it was supposed to fix. MCILWAINE: In the light of the evil that happened to Mr Page."
I shall return to this below. I do not think an adequate answer can be given to that question, turning as it does on the appropriate generality or specificity to characterise the legislative purpose, without first assaying a closer analysis of the text of the provisions which enliven the power under s 11.

[15]

A closer examination of s 11

The definition of "relevant order" is as follows: "relevant order means: (a) an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction, or (b) a declaration by a federal court, whether made before or after the commencement of this section, that it has no jurisdiction to hear and determine a proceeding relating to a State matter, or (c) any other decision or determination by a federal court, whether made before or after the commencement of this section, that it has no jurisdiction to hear and determine a proceeding relating to a State matter."
There are many ways by which the Federal Court may "dismiss", "strike out" or "stay" a proceeding for want of jurisdiction, to pick up some of the language of s 11. An order staying proceedings for want of jurisdiction is unusual, although such orders were sought in pending proceedings in the Federal Court shortly after the State Jurisdiction Act was enacted, for the purpose of engaging the power conferred on the Supreme Court, and the general sense of such an order can be appreciated in circumstances where the jurisdictional question is contestable and complex (see Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd (1999) 94 FCR 384; [1999] FCA 1572 and Australian Securities & Investments Commission v Singapore Liason Pty Ltd [2000] FCA 226). Proceedings are, these days, more commonly dismissed, as opposed to struck out, for want of jurisdiction, although the High Court "struck out" a proceeding for want of jurisdiction in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 in recognition of the force of the Scott v Avery clause: see the order in Action 72 of 1981 at p 430, and Mason J's observation at 366 that the clause "operates to condition curial jurisdiction on the existence of an award".
The extension of the definition of "relevant order" to declarations in paragraph (b) of the definition, and to any other decision or determination that the Federal Court has no jurisdiction to hear and determine in paragraph (c), entails that the operation of the statute does not turn on the form of the order. It turns on the determination that there is an absence of jurisdiction. In what follows I shall for concision refer simply to "dismiss". I shall also refer simply to the "Federal Court", notwithstanding that the provisions also applied to orders made by the Family Court.
There is another important distinction between "relevant orders" and "ineffective judgments". This distinction was central to Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, which upheld the validity of s 11. An ineffective judgment is a judgment or order apt to be set aside on application because the court lacked jurisdiction to make it. Not so a relevant order dismissing a proceeding for want of jurisdiction. An order of the Federal Court dismissing a proceeding for want of jurisdiction is itself a valid exercise of that Court's jurisdiction. This is no paradox. It merely illustrates how superficially straightforward statutory language can carry multiple meanings. An order dismissing a proceeding for want of jurisdiction is an exercise of the Federal Court's authority to decide whether its own jurisdiction has been validly invoked. All courts have the authority to decide whether a claim that is made in the court is within its jurisdiction: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31]. As the joint judgment in Residual Assco said at [14]: "If the proceedings were not within the jurisdiction of the Federal Court or the Family Court, those courts had authority to make binding orders that the proceedings were not within their jurisdiction. Want of jurisdiction might arise from the fact that no federal law vested the jurisdiction in the court or because the Parliament had no constitutional power to make laws with respect to the subject matter which it had purported to vest in the federal court. Under s 19 of the Federal Court Act or s 31(1)(d) of the Family Law Act, the Federal Court and the Family Court had jurisdiction, for example, to dismiss for want of jurisdiction a petition to wind up a company under State legislation, or to dismiss an action for damages for a tort or breach of contract which was not within the accrued jurisdiction of the court. The enactment of the cross-vesting legislation did not affect the jurisdiction of those courts, as superior courts of record, to hold that they had no jurisdiction to make orders in proceedings commenced in those courts."
Thus the "want of jurisdiction" and "no jurisdiction" which engage the various limbs of the definition of "relevant order" are not directed at the court's authority to make the order itself. They are directed to the reason for the Federal Court being unable to determine the proceeding on the merits.
Section 11 of the State Jurisdiction Act does not refer merely to proceedings dismissed for want of jurisdiction. Each limb of the definition of "relevant order" requires there to have been a "proceeding relating to a State matter". The term "State matter" is defined quite elaborately in s 3 as follows: "State matter means a matter: (a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a Territory, or (b) which has been removed to the Supreme Court under section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987, or (c) in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court, or (d) arising under or in respect of an applied administrative law."
"State matter" was also an important defined term in the cross-vesting scheme. Section 4(1) of each State's Jurisdiction of Courts (Cross-vesting) Act provided: "The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters." Section 4(2) made similar provision in relation to the Family Court. "State matter" was defined in s 3 of each State's Jurisdiction of Courts (Cross-vesting) Act to mean: "a matter: (a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or (b) removed to the Supreme Court under section 8".
The substantial identicality of the first two limbs of the definition of "State matter" in the State Jurisdiction Act and the definition of the same term in the New South Wales Jurisdiction of Courts (Cross-vesting) Act will be apparent.
Sections 4(1) and (2) were held invalid by the High Court in Re Wakim; ex parte McNally.
A "relevant State Act" as mentioned in the third limb of the definition is defined to mean one of around a dozen State Acts. In argument, attention was given to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and the Corporations (New South Wales) Act 1990 (NSW). (The Attorney General's second reading speech explained that the other statutes, "in general laws associated with Commonwealth-State co-operative schemes", likewise purported to confer jurisdiction on federal courts.)
The fourth limb of the definition concerns matters arising under or in respect of an applied administrative law. An "applied administrative law" is defined to mean "a law of the State applying a Commonwealth administrative law as a law of the State", and Commonwealth administrative law is in turn defined to mean the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Freedom of Information Act 1982 (Cth), the Ombudsman Act 1976 (Cth) or the Privacy Act 1988 (Cth), or any regulations in force under those Acts. Neither side contended that this limb was relevant to any issue arising in this appeal.

[16]

The significance of "purports or purported" in the definition of "State matter"

Note that the relevant State Act is expressed to be one which "purports or purported" to confer jurisdiction on a federal court. Following Re Wakim it was clear that no State statute could validly confer jurisdiction on a federal court; it could only purport to do so. Accordingly and appropriately, the provisions of State statutes which were held in Re Wakim to be invalid have been repealed (thus to this day s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) lacks subsections (1) and (2)). At the time the State Jurisdiction Act was passed, the repeal of invalid ss 4(1) and (2) was contemplated. Debate on the bill was concluded by the Attorney-General thus: "[T]his is not the ultimate solution to the problem of co-operative Federal and State litigation [scil, legislation] but it is at least a stopgap measure that will avoid inconvenience for litigants and will assist the court system. I commend the bill to the House."
As it turned out, the substantial measures addressing the legislative incapacity established by Re Wakim involved the referral of State power, and s 4(1) and (2) were not repealed until November 2000 by Federal Courts (Consequential Provisions) Act 2000 (NSW), Schedule 1.6 item 1. But this delay was anticipated by s 17(1) of the State Jurisdiction Act, which provided that "[a]ny provision of a relevant State law that purports to confer jurisdiction on a federal court is taken not to have that effect". It is palpably clear that the subject of the State Jurisdiction Act was the immediately pressing problem of historical judgments and orders and pending proceedings commenced in the Federal Court purportedly pursuant to State legislation which the High Court had determined could not validly sustain them.
Those words "purports or purported" are worth noting. There will be a proceeding relating to a State matter if, at the time the proceeding commenced, the New South Wales Jurisdiction of Courts (Cross-vesting) Act purported to confer jurisdiction on a federal court. As will be seen above, that statute purported to confer jurisdiction in respect of "State matters" defined in terms materially identical to the first two limbs of the definition of "State matter" in the State Jurisdiction Act. Many proceedings were commenced in the Federal Court relying on the purported conferral of jurisdiction under the New South Wales Jurisdiction of Courts (Cross-vesting) Act. After Re Wakim was delivered, the Federal Court made "relevant orders" dismissing those proceedings for want of jurisdiction. Immediately after the enactment of the State Jurisdiction Act, and while s 4(1) was in force, it might still make sense to speak of a matter in respect of which the Jurisdiction of Courts (Cross-vesting) Act purports to confer jurisdiction on the Federal Court, notwithstanding the effect of s 17(1), although if s 17(1) were taken at face value, purported would be more accurate. Putting to one side the effect of s 17(1), it might even be possible after s 4(1) had been repealed for there to be a "relevant order" in a proceeding commenced in purported reliance on s 4(1) before its repeal, and at that time it would make sense to speak of a matter in respect of which the Jurisdiction of Courts (Cross-vesting) Act purported to confer jurisdiction on the Federal Court. But in all those cases, at the time the proceeding had been commenced in the Federal Court, s 4(1) of the New South Wales Jurisdiction of Courts (Cross-vesting) Act had purported to confer subject matter jurisdiction on the Federal Court to hear and determine the proceeding, by reason of a provision which conferred jurisdiction in respect of "State matters" defined by reference to the first and second limbs of that term as it appears in the State Jurisdiction Act.
The point is that a proceeding with no federal element which was commenced in the Federal Court in September 1998 may readily be seen to be a proceeding relating to a State matter. A proceeding with no federal element which was commenced in the Federal Court in September 1999 (after Re Wakim but before s 4(1) of the New South Wales Jurisdiction of Courts (Cross-vesting) Act had been repealed) may also be seen to be a proceeding relating to a State matter. But take a proceeding like Randjelovic v Threlfall [2012] FCA 1331, which was commenced in the Federal Court in September 2012, a decade after Re Wakim was delivered and s 4(1) repealed. That was a simple contractual dispute and claim under the Fair Trading Act 1999 (Vic) and Wrongs (Public Contracts) Act 1981 (Vic) with no federal element, commenced by an unrepresented litigant, which was dismissed for want of jurisdiction. That was not a matter in respect of which a relevant State Act "purports or purported" to confer jurisdiction on the Federal Court. The purported conferral of jurisdiction in State matters in the State cross-vesting legislation had been repealed in 2000, long before the dispute between Ms Randjelovic and Mr Threlfall had arisen.
Another way of making this point is as follows. 1. The word "purports" in the definition of "State matter" envisages that although s 4(1) of the New South Wales Jurisdiction of Courts (Cross-vesting) Act was known to be invalid, the question whether a "relevant order" had been made might arise before s 4(1) was repealed or ceased to have effect. 2. The word "purported" in the definition of "State matter" envisages the repeal of, inter alia, s 4(1) of the New South Wales Jurisdiction of Courts (Cross-vesting) Act, and the possibility that it may be necessary to ask whether a proceeding in the Federal Court related to a State matter at a time after s 4(1) was repealed or ceased to have effect. 3. However, the word "purported" in the definition of "State matter" does not envisage asking that question of a proceeding wrongly commenced in the Federal Court at a time when s 4(1) did not purport to confer jurisdiction, because s 4(1) had long since been repealed.
Pausing there, it will be observed that: 1. most of the provisions of the State Jurisdiction Act are confined to judgments and orders made prior to or shortly after the partial invalidity of the cross-vesting scheme determined in Re Wakim in 1999; and 2. section 11 turns on there being a proceeding which relates to a "State matter", being the same term similarly defined as resulted in the partial invalidity of the cross-vesting scheme, and at least part of the definition of that term is apt to be read to proceedings in respect of which at the time they were commenced s 4(1) of the New South Wales Jurisdiction of Courts (Cross-vesting) Act purportedly conferred jurisdiction on the Federal Court.

[18]

Personal jurisdiction

The Federal Court may lack personal jurisdiction over a defendant. A defendant who contends that the Federal Court cannot exercise jurisdiction over him, her or it could formerly file a conditional appearance (and more recently, can apply under r 13.01 of the Federal Court Rules 2011 (Cth)) to have that issue determined. Thus by way of example, a claim against a defendant who is a foreign ambassador with immunity from suit would be dismissed by the Federal Court for want of jurisdiction, but would suffer the same fate if commenced in the Supreme Court of New South Wales. Section 11 does not apply because a proceeding against a foreign ambassador is not a proceeding relating to a matter in which the Supreme Court would have personal jurisdiction at all. Likewise, a defendant who has no connection with Australia, facing a claim based on conduct occurring outside Australia, would not be amenable to the jurisdiction of the Federal Court, but in most if not all cases that defendant would also not be amenable to the jurisdiction of the Supreme Court, and so once again s 11 would not apply.
There may perhaps be cases where the Supreme Court's long-arm jurisdiction is broader than that of the Federal Court. The position might also be different if an overseas defendant had agreed to submit to the jurisdiction of the Supreme Court of New South Wales. In at least some classes of dispute in such a case, the Supreme Court would have jurisdiction and the Federal Court would not. In such cases, the personal jurisdiction of the Supreme Court against the foreign defendant would not be derived from a statute of the Commonwealth or another State, but by reason of the agreement to submit to jurisdiction. Such a case might be thought at first blush to fall within the literal meaning of "relating to a State matter". But it may be seen that that is not so.
If an absence of personal jurisdiction is the only reason the Federal Court lacks jurisdiction, then the subject matter of the litigation must necessarily be a matter in federal jurisdiction. It is axiomatic that, following Re Wakim, federal courts can only exercise federal jurisdiction. But in cases of federal jurisdiction, to the extent that the Supreme Court would have jurisdiction in the same matter, the Supreme Court would likewise necessarily be exercising federal jurisdiction invested in it by some federal law enacted pursuant to s 77(iii) of the Constitution. It follows that the proceeding would not be one which relates to a State matter within the first limb of definition of State matter. The other limbs of the definition of State matter will be inapplicable in the vast majority of cases.
That analysis produces the result that notwithstanding the prima facie breadth of the term "want of jurisdiction" in s 11 of the State Jurisdiction Act, it is to be understood as referring to an absence of subject matter, rather than personal, jurisdiction. That of course is corroborated by the circumstance that it was made immediately after and as a "stopgap measure" responding to the incapacity to confer subject matter jurisdiction upon federal courts.

[19]

Diversity jurisdiction

Turning to the subject matter jurisdiction of the Federal Court, and contrary to an example raised during argument, matters involving parties in two different States are more complicated than they may first seem. Suppose (a) a resident of New South Wales sues a resident of Queensland on a contract, and (b) a resident of New South Wales sues a Queensland company on a contract. Each justiciable controversy gives rise to a "matter". The Federal Court has subject matter jurisdiction in respect of neither matter, albeit for quite different reasons. 1. The first example is a matter within federal jurisdiction, being a matter between residents of different States within the meaning of s 75(iv) of the Constitution, but there is no general conferral of diversity jurisdiction on the Federal Court (contrast the position in the United States). 2. The Federal Court can have no jurisdiction in the second example because there is no matter in federal jurisdiction; diversity jurisdiction in this country requires the parties to be natural persons: Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22; [1985] HCA 69 (once again, contrast the position in the United States).
The Supreme Court has subject matter jurisdiction over both matters, and so long as service can be effected on the Queensland resident or company, it can hear and determine the matter. The most natural way in which service may be effected will be through the mechanism now mandated by the Service and Execution of Process Act 1992 (Cth), but it may very much be doubted that for that reason the proceeding did not "relate to a State matter". If the Queensland resident ventures into New South Wales, he or she can be served personally without reliance on federal law, and it would surely be strange for the availability of s 11 in such a case to turn on whether or not the defendant visited New South Wales. More fundamentally, for the reasons given above, "want of jurisdiction" in s 11 is to be understood as want of subject matter jurisdiction, as opposed to the defendant not being amenable to the Federal Court's writ.
The New South Wales resident's contractual claim against the Queensland company is not in federal jurisdiction, while his or her claim against the Queensland resident is in federal jurisdiction. Thus, if the proceeding were commenced in the Supreme Court of New South Wales against the Queensland resident, the State court would be exercising federal jurisdiction invested pursuant to s 77(iii) of the Constitution by the general investment of jurisdiction effected by s 39(2) of the Judiciary Act 1903 (Cth). It follows that the proceeding would not relate to a "State matter", at least on the ordinary meaning of the first limb of the definition of that term. The whole of the Supreme Court's jurisdiction to hear and determine that litigation would derive from a law of the Commonwealth, namely, s 39(2) of the Judiciary Act.
Thus on its ordinary meaning, s 11 is capable of application in relation to the doubly misguided claim against the Queensland company (doubly misguided because the matter was not in federal jurisdiction as well as not being within the jurisdiction of the Federal Court), but not in relation to the misguided claim against the Queensland resident (being a matter which was at least in federal jurisdiction).
Suppose the hypothetical examples above were commenced in 2020 shortly before the expiry of a limitation period, and the Federal Court dismissed each proceeding for want of jurisdiction. The Federal Court decisions would be plainly correct. But if the construction of the State Jurisdiction Act upheld by the primary judge is correct, the order dismissing the second proceeding, but not the order dismissing the first proceeding, was a "relevant order". It is difficult to see any plausible legal purpose for such a capricious outcome. Why would State legislation enacted immediately after Re Wakim enable one plaintiff to apply under s 11 and not the other?

[20]

Other ways in which the Federal Court may lack subject matter jurisdiction

In the passage from the joint judgment in Residual Assco reproduced above, the High Court identified two ways in which the Federal Court may lack subject matter jurisdiction: because no federal law conferred jurisdiction and because there was no legislative power to enact a law which purported to confer jurisdiction. The absence of a general conferral of diversity jurisdiction upon the Federal Court is an example of the first, and the impossibility of conferring jurisdiction as purportedly conferred by s 4(1) may be an example of the second. There are other possibilities, too.
A third class of example arises where the Federal Court may have subject matter jurisdiction in relation to claims of the type propounded by the plaintiff, but the plaintiff may fail to establish the facts upon which that jurisdiction depends: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 426; [1994] HCA 54. Admiralty cases supply examples: see Kent v SS "Maria Luisa" (No 1) (2002) 130 FCR 1; [2002] FCA 1207, appeal dismissed (2003) 130 FCR 12; [2003] FCAFC 93 (applicant of in rem action failed to establish ship was sister ship so as to support surrogate jurisdiction) and Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately On Board The Ship "Offshore Guardian" [2020] FCA 273 (applicant failed to establish the remotely operated underwater vehicle which was named as in rem defendant was a "ship"). But these may be put to one side. The Supreme Court of New South Wales would have concurrent jurisdiction under the Admiralty Act 1988 (Cth) with the Federal Court in each of these cases. However, they are not cases where the Supreme Court of New South Wales has jurisdiction otherwise than by reason of federal law, and so they are not proceedings which "relate to a State matter".
A fourth class of example arises were the Federal Court lacks jurisdiction because of a law enacted pursuant to s 77(ii) of the Constitution making the jurisdiction of another federal court exclusive. Suits between two States, or between the Commonwealth and a State, which are within the exclusive jurisdiction of the High Court by reason of s 38(b) and (c) of the Judiciary Act 1903 (Cth) are an example. But once again, the order of the Federal Court dismissing such a proceeding for want of jurisdiction would not be a relevant order, because the Supreme Court likewise lacks jurisdiction over such a dispute.
A potential fifth class of case might occur if the Federal Court had personal jurisdiction and subject matter jurisdiction, but the parties had agreed that the Supreme Court had exclusive jurisdiction to hear and determine a class of disputes arising between them. Ordinarily, courts have manifested a "strong disposition" to enforcing such clauses: see Australian Health and Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [76]. However, as the President there explained, private parties by their agreement cannot oust the court's jurisdiction, and so as presently advised I would doubt that a stay of proceedings in deference to an exclusive jurisdiction clause would be a stay "for want of jurisdiction" so as to engage s 11.

[22]

Conclusion on ground 3

A purpose of the State Jurisdiction Act was to deal with historic judgments and orders made in the Federal Court: hence ss 6, 7, 8, 9, 10 and 12. Section 11, which extends to orders made after the State Jurisdiction Act commenced, is in a different category. Even so, as was candidly and properly acknowledged, the order of the Federal Court made on 24 April 2020 dismissing Mr Page's amended originating application for want of jurisdiction fell within the literal meaning of paragraph (a) of the definition of "relevant order".
The respondent submitted that falling within the literal meaning of the definition of "relevant order" was sufficient, and that in any event, the State Jurisdiction Act was remedial legislation and should be construed broadly and benevolently. It is true that remedial legislation should, on conventional principles of construction, be construed broadly. However, it does not follow that a "broad" construction should be given to every contestable provision in remedial legislation. Rather, the true principle of construction is that the legislation should be construed so as to promote the remedial purpose.
It is also true that legal meaning ordinarily corresponds with grammatical meaning, such that falling within the literal meaning of legislation is often sufficient. "But not always". This should surely now be regarded as axiomatic, almost a quarter of a century after the High Court's purposefully blunt rejection of a similar submission, based on similarly simplistic literalism. There are cases where ostensibly unambiguous legislative language does not bear its prima facie meaning, once regard is had to purpose or context or other provisions in the instrument or consequences: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]: "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (footnote omitted)
Coincidentally, it was in Residual Assco - in which the validity of s 11 of the (identical) South Australian State Jurisdiction Act was confirmed - that the joint judgment preferred a purposive reading which displaced the merely textual submissions advanced by the defendants: "The purpose of s 11(3)(b) is a strong indicator that the purpose of s 11 is to enable a party to proceedings in a federal court relating to a State matter to bring new proceedings in the Supreme Court whenever the federal court has disposed of its proceedings on the basis that it had no jurisdiction to deal with them. That being so, the textual points upon which the defendants rely cannot prevail. In construing a statutory provision, we should always keep in mind what Judge Learned Hand said in Cabell v Markham: 'Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.'" (footnote omitted)
Is the legal meaning of s 11 of the State Jurisdiction Act that any plaintiff who invokes the jurisdiction of the Federal Court only to have the proceeding dismissed for want of jurisdiction is to have an opportunity to apply for an order under s 11(2) so as to be taken, with retrospective effect, to have commenced proceedings in the Supreme Court of New South Wales, so long as the proceeding relates to a State matter? That would be a very substantial change. It would mean that not only should litigants who had blamelessly relied on the intended effect of the State cross-vesting legislation and the binding precedent established by BP Australia Ltd v Amann Aviation Pty Ltd and Gould v Brown be given an entitlement to apply, but so too should litigants who were mistaken about jurisdiction in far less blameless circumstances, decades after that result was overturned by Re Wakim.
Textual and contextual considerations point to "relevant order" in s 11 of the State Jurisdiction Act bearing a narrower legal meaning. Textually, Mr Page's proceeding in the Federal Court was not a proceeding in respect of which a relevant State Act "purports or purported" to confer jurisdiction on that court within the meaning of paragraph (c) of the definition of "State matter". His proceeding was commenced two decades after s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) had been repealed. On no view does it fall within paragraph (b) or (d) of that definition. While I accept that it falls within the ordinary meaning of paragraph (a) of that definition, it is important to bear in mind that paragraph (a) reflects the definition of "State matter" in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and tends to confirm that the State Jurisdiction Act was a response to the invalidity of part of the cross-vesting scheme. It is not to the point to assert that the language in the definition of "relevant order" should not be confined, because that is not so: "jurisdiction" in the definition of "relevant order" in s 11 bears a narrower meaning, confined to subject matter jurisdiction, than the range of meanings the word is capable of bearing.
Contextually, the State Jurisdiction Act was (in the Attorney's words) a "stopgap measure". Its purpose was to respond to the change in the law effected by Re Wakim. There is nothing to suggest that its purpose extended to proceedings commenced two decades after Re Wakim was delivered. There is nothing to suggest that its purpose extended to benefiting all plaintiffs who commenced proceedings in federal courts without jurisdiction for any reason whatsoever.
If the State Jurisdiction Act is given its literal meaning, it gives rise to capricious outcomes such as have been mentioned above. The New South Wales litigant who sues a Queensland company on a contract who commences in the Federal Court and whose proceeding is dismissed can apply under s 11, but the New South Wales litigant who sues a Queensland resident cannot. Those capricious outcomes are, on conventional principles of statutory construction, to be avoided. They are avoided if "State matter" is confined to proceedings in the Federal Court which at the time they were commenced were purportedly authorised by s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
If s 11 of the State Jurisdiction Act is given its literal meaning, then it is not a stopgap measure. It has an operation far broader than every other provision in the statute. The effect is to provide a safety net for every proceeding dismissed for want of subject-matter jurisdiction in the Federal Court which should have been commenced in the Supreme Court. There are arguments for and against such a regime, but it is plainly not something which finds any support in anything other than the literal language of the provision.
It is no small thing for the Parliament to create a retrospective fictional proceeding in the Supreme Court. I can readily appreciate the sense in doing so as an immediate response to a High Court decision overturning a State regime which had hitherto been established at the intermediate appellate level. But it is much more difficult to justify such an extreme measure as a safety net extending indefinitely into the future for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court of Australia without first considering the issue of jurisdiction.
Further, there are no time limitations upon the exercise of power under s 11. If the State Jurisdiction Act is given its literal meaning, then Ms Randjelovic could apply to the Supreme Court of Victoria today, or in five years' time, although her proceeding was dismissed in 2012. It is difficult to see how she might obtain a favourable exercise of discretion without a really good explanation for the delay, but even so the potential for such an application calls into question giving effect to the literal meaning of this hastily enacted stopgap measure.
It may not be often that a court will depart from the literal meaning in order to give effect to the imputed intention and to promote the legislative purpose. But the present is such a case, by reason of the combination of countervailing considerations mentioned above. It falls within the rubric described by Francis Bennion under the heading "Unforeseen facts and accidental fit": F A R Bennion, Bennion on Statutory Interpretation (5th ed, LexisNexis, 2008), p 482.
Applying the principle formulated by Griffith CJ in Muller v Dalgety & Co Ltd and the command in s 33 of the Interpretation Act 1987 (NSW) to prefer a construction which promotes the Act's purpose, I respectfully disagree with the respondent's construction of s 11. No differently from every other provision of the State Jurisdiction Act, s 11 is confined in time to proceedings commenced at a time when the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer jurisdiction in State matters on the Federal Court. The State Jurisdiction Act is a New South Wales legislative response to the invalidity of aspects of earlier New South Wales legislation, upon which litigants had reasonably relied.
The order made on 24 April 2020 by the Federal Court dismissing Mr Page's proceeding is far removed from the scope of s 11. The order was made more than two decades after the High Court determined (overruling the result reached in Gould v Brown) that State Legislatures had no power to confer jurisdiction upon the Federal Court or the Family Court. Although Mr Page's proceeding was dismissed for want of jurisdiction, the absence of jurisdiction was not some hitherto unperceived implied constitutional restriction on State legislative capacity. Instead, it seems merely to be a misunderstanding of the basis of statutory liability for intra-State carriage by air, and the consequences of the absence of federal legislative power for intra-State carriage recognised in Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3.
For those further reasons, in addition to those of Bell P and Emmett AJA, I agree that the third ground of this appeal (which is logically anterior to the rest) is made out.

[23]

The remaining grounds of appeal

On the view I take it is not necessary to deal with the other points, to which I shall make brief reference only. The requirement to commence proceedings within two years pursuant to a regime based on the Warsaw Convention, made applicable by New South Wales legislation to intra-State commercial flight, is to be regarded as a condition which is of the essence of the right to damages, rather than a bar to the enforcement of a right: see (in relation to comparable legislation concerning intra-Territory flight) Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 at [51] and [54]. It is moot whether, applying a benevolent construction, that two year requirement is a "limitation law" for the purpose of s 11(3)(b), because the deemed Supreme Court proceeding pursuant to s 11(2) is taken to have come into existence retrospectively "for all other purposes", which is apt to include the purpose of satisfying that condition of the statutory right. Ground 4 fails.
I agree with Bell P that the submissions made in support of grounds 1 and 2 on inconsistency do not admit of an easy answer. Principally that is because it turns on the effect to be given to s 6A of the Civil Aviation (Carriers' Liability) Act 1967 (NSW), an issue which was left open by the High Court in Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39 at [18]. The appellant invited this Court to revisit its earlier decision in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 in light of the enactment of s 6A. But the resolution of none of these grounds will affect the outcome of this appeal. The precise question is unlikely to arise in the future, because (so far as the Court and the parties are aware), no applications had been under s 11 in the last decade save for the present case. On the construction upheld by this Court, it is very difficult to see any application under s 11 being made in the future. On the other hand, what this Court says about s 6A in resolving that ground may be relied on in other litigation. In those circumstances, I think it is better not to determine these grounds, in accordance with Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8] and [101].
I agree with the orders proposed by Bell P.
EMMETT AJA: The question in these proceedings is whether a proceeding commenced in the Federal Court of Australia (the Federal Court) on 23 December 2019 is deemed to have been brought in the Supreme Court on that day, so as to avoid the consequences of s 34 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Commonwealth Liability Act) as incorporated by s 5 of the Civil Aviation (Carriers' Liability) Act 1967 (NSW) (the NSW Carriers Act). Section 34 would otherwise have operated to extinguish a cause of action of the respondent, Mr Alexander Page, under the NSW Carriers Act. The question turns upon the meaning and effect of s 11 of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (the State Jurisdiction Act).
On 23 December 2019, an originating application was filed on behalf of Mr Page in the New South Wales Registry of the Federal Court. The originating application was allocated file number NSD2138/2019 by the Federal Court. The applicant in the present proceedings, Sydney Seaplanes Pty Ltd (Sydney Seaplanes), was named as respondent in the originating application, but its name was misspelt. On 10 February 2020, an amended originating application was filed in the Federal Court in order to correct the misspelling.
The originating application was supported by a statement of claim in which Mr Page claimed damages pursuant to s 28, s 31 and s 35 of the Commonwealth Liability Act, as incorporated by s 5 of the NSW Carriers Act as part of that Act. Mr Page claimed damages for psychological injury suffered by him arising out of the death of his daughter on 31 December 2017 when the seaplane in which she was a passenger crashed in the course of a flight between Cottage Point and Rose Bay, New South Wales. The seaplane was being operated by Sydney Seaplanes.
On 24 April 2020, Griffiths J, a justice of the Federal Court, made the following order: "The amended originating application is dismissed for want of jurisdiction." His Honour concluded that the Federal Court did not have jurisdiction to entertain the proceedings because the amended statement of claim made it explicit that the action for damages was brought pursuant to the Commonwealth Liability Act as incorporated by the NSW Carriers Act.
Section 28 of the Commonwealth Liability Act relevantly provides that, where Pt IV applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident that took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Section 31 relevantly provides that the liability of a domestic carrier under Pt IV in respect of each passenger, by reason of his or her injury or death resulting from an accident, is limited as specified in s 31. Section 35 applies in relation to liability imposed by Pt IV on a carrier in respect of the death of a passenger, including the injury that resulted in the death.
Section 5 of the NSW Carriers Act relevantly provides that the provisions of Pt IV of the Commonwealth Liability Act apply to and in relation to carriage to which the NSW Carriers Act applies and matters connected with the carriage, as if those provisions were incorporated in the NSW Carriers Act and as if, in those provisions as so incorporated, general references to Pt IV of the Commonwealth Liability Act were references to the NSW Carriers Act and a reference in one of those provisions to another of those provisions were a reference to that other provision as applying by virtue of the NSW Carriers Act. Section 6A of the NSW Carriers Act provided that it was the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State. The reference to "applied provisions" was a reference to the provisions of the Commonwealth Liability Act as they apply under the NSW Carriers Act as laws of the State of New South Wales.
Griffiths J considered that Mr Page's purported federal claim was entirely misconceived because the rights and liabilities created by the relevant legislation did not apply to an intrastate flight. Accordingly, his Honour held, a claim under the applied provisions in the NSW Carriers Act does not of itself constitute a matter in the federal jurisdiction.
On 11 May 2020, Mr Page filed a summons in the Common Law Division of the Supreme Court seeking an order, pursuant to s 11(2) of the State Jurisdiction Act, that proceeding NSD2138/2019 be treated as a proceeding in the Supreme Court and that it be recorded by the Supreme Court as a proceeding of the Supreme Court. On 28 October 2020, for reasons published on that day, a judge of the Common Law Division (the primary judge) made orders to the following effect: 1. Federal Court Proceeding NSD2138/2019 be treated as a proceeding in the Supreme Court. 2. Federal Court Proceeding NSD2138/2019 be recorded by the Supreme Court as a proceeding in the Supreme Court. 3. Federal Court Proceeding NSD2138/2019 is deemed to have been brought in the Supreme Court on 23 December 2019.
On 19 November 2020, Sydney Seaplanes filed a notice of intention to appeal from the orders made on 28 October 2020. On 28 January 2021, Sydney Seaplanes filed a summons seeking leave to appeal from the orders. An order has been made that the application for leave and the appeal be heard concurrently.
The purpose of the State Jurisdiction Act was stated in s 1 to be, relevantly, to provide that certain decisions of the Federal Court have effect as decisions of the Supreme Court and to make other provision relating to certain matters relating to the jurisdiction of the Federal Court. The State Jurisdiction Act came into force on 10 December 1999 in response to a decision of the High Court of Australia that the jurisdiction that could be conferred on the Federal Court was limited by reference to the matters in s 75 and s 76 of the Constitution and that no polity other than the Commonwealth could confer such jurisdiction. [1]
Part 2 of the State Jurisdiction Act, which consists of ss 6 to 14, deals with "Rights and liabilities". Section 6 relevantly provides that the rights and liabilities of all persons are, by force of the State Jurisdiction Act, declared to be, and always to have been, the same as if each ineffective judgment (as defined) had been a valid judgment of the Supreme Court either in a Division constituted by a judge of the Supreme Court or of the Supreme Court in the Court of Appeal. Under s 4, an ineffective judgment includes a judgment of the Federal Court in a State matter (as defined) given or recorded, before the commencement of s 4, in the purported exercise of jurisdiction purporting to have been conferred on the Federal Court by a relevant State Act. Relevantly, the term State matter is a matter in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or Territory.
Section 7 of the State Jurisdiction Act relevantly provides that a right or liability conferred, imposed or affected by s 6 is exercisable or enforceable and is to be regarded as always having been exercisable or enforceable, as if it were a right or liability conferred, imposed or affected by a judgment of the Supreme Court. Such rights and liabilities include the right of a person who was a party to the proceeding or purported proceeding in which the ineffective judgment was given or recorded to appeal against that judgment. For that purpose, each ineffective judgment is deemed to be a judgment of the Supreme Court in a division constituted by a judge of the Supreme Court.
Section 8 deals with the effect of things done or omitted to be done under or in relation to rights and liabilities conferred, imposed or affected by s 6. Section 10 provides that the Supreme Court may vary, revoke or set aside, revive or suspend a right or liability conferred, imposed or affected by s 6 as if it were a right or liability conferred, imposed or affected by the Supreme Court in or in relation to a proceeding of a kind in or in relation to which the ineffective judgment was given or recorded.
The effect of the Commonwealth Carriers Act and the NSW Carriers Act is that Mr Page's right to damages was extinguished if an action was not brought by him within two years after the date on which the aircraft ought to have arrived at its destination, namely, 31 December 2017. Federal Court proceeding NSD2138/2019 was brought within that period. However, the period had expired by the time when the order dismissing the amended originating application was made on 24 April 2020. If s 11 of the State Jurisdiction Act applies, and the order made by the primary judge is effective, Mr Page will be deemed to have commenced a proceeding in the Supreme Court within the relevant two-year period. If not, his claim will be barred.
Section 11 of the State Jurisdiction Act falls to be construed against the background of the provisions just summarised. Under s 11(2), a person who was a party to a proceeding in the Federal Court in which a relevant order is made may apply to the Supreme Court for an order that the proceeding in the Federal Court be treated as a proceeding in the Supreme Court and the Supreme Court may make such an order. A relevant order is defined, relevantly, as: "an order of [the Federal Court], whether made before or after the commencement of [s 11], dismissing… a proceeding relating to a State matter for want of jurisdiction."
Under s 11(3) of the State Jurisdiction Act, if the Supreme Court makes an order such as is referred to in s 11(2), the proceeding in which the relevant order was made becomes a proceeding in the Supreme Court and, for all purposes, including for the purposes of any limitation law, is deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the Federal Court. A limitation law includes any law that provides for the limitation of liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.
Sydney Seaplanes contends that, on its proper construction, s 11 did not authorise the order purportedly made by the primary judge under that section. That question turns on whether the term relevant order in s 11 of the State Jurisdiction Act should be construed as being limited to an order dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction on the basis that the jurisdiction being invoked was jurisdiction purporting to have been conferred on the Federal Court by a relevant State Act.
Section 11 was not intended to operate otherwise than to preserve the effect of orders made by federal courts (including the Federal Court of Australia) in the purported exercise of jurisdiction purporting to have been conferred on such federal courts by a relevant State Act. The jurisdiction sought to be invoked by Mr Page in Federal Court proceeding NSD2138/2019 was not jurisdiction purporting to have been conferred on the Federal Court by a relevant State Act. As Griffiths J found, the commencement of that proceeding was misconceived, since the subject of the purported proceeding was wholly intrastate transport by air. Federal Court proceeding NSD2138/2019 was beyond the jurisdiction of the Federal Court because the Federal Court never had jurisdiction to award damages under the NSW Carriers Act, not because the purported jurisdiction was conferred upon it by a State Act.
I have had the pleasure of reading in draft form the reasons of the President for concluding that the primary judge erred in making an order under s 11 of the State Jurisdiction Act. I agree with the orders proposed by the President for the reasons given. I have also had the advantage of reading the proposed reasons of Leeming JA and I agree with his Honour's observations.