Territorial jurisdiction

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Research Word count: 2,325

Due date: 12th December 2014

Ranya Hamzeh (220122595)

UNIVERSITY OF NEW ENGLAND LLM617 RESEARCH

RANYA HAMZEH (220122595)

“Except to the extent of the constitutional invalidity of an aspect of the cross-

vesting scheme as has been seen there is no doubt that the cross-vesting scheme

has the effect of vesting the ‘subject matter jurisdiction’ of a particular court in the

scheme in any of the other courts but there is some doubt as to whether it extends,

in effect, to the ‘territorial’ jurisdiction”.

Discuss this statement with reference to relevant case law, articles and legislation.

(It is expected your research extends further than the materials prescribed).

Research: written assessment

Word count: 2,325

Due Date:12th December 2014

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I INTRODUCTION

In 1987, the Jurisdiction of Courts (Cross-Vesting) Act 1987 was passed by the

Commonwealth and each of the State. This conferred jurisdiction on the Federal,

Family, and Supreme Courts of other States and Territories. This aided in the

matters that where to be heard under State or Territorial law as well as allowing

for the matters to be transferred between the courts where it was seen

appropriate.1 Previously Federal Courts supervisory Jurisdiction was conferred to

and limited by the Administrative Decisions (Judicial Review) Act 1977 2 and

section 39B of the Judiciary Act 1903 (Cth).3 Furthermore, the Jurisdiction of

Courts (Cross-Vesting) Act 1987 has also allowed for the state Supreme courts the

federal supervisory jurisdiction this also extends to Supreme Courts of the other

States and of the Territories in State and Territory matters respectively if they are

termed under ‘special federal matters ‘that was denied under s9 of the ADJR

1 Judicial Commission of New South Wales, “Cross-vesting legislation”, Judicial Commission of

New South Wales, 23 December 2013

<http://www.judcom.nsw.gov.au/publications/benchbks/civil/cross-vesting_legislation.html>

2 Administrative Decisions (Judicial Review) Act 1977.

3 Section 39B of the Judiciary Act 1903 (Cth).

http://www.judcom.nsw.gov.au/



http://www.judcom.nsw.gov.au/publications/benchbks/civil/cross-vesting_legislation.html

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Act.4It should be noted that the original jurisdiction of the High Court of

Australia is not effected by the cross-vesting scheme.5

The cross vesting scheme was introduced as Australia does not have a national

civil jurisdiction. It was introduced so that jurisdictional conflicts that can be

caused through state and federal courts mainly are resolved this is done by

permitting the exercise of civil jurisdiction nationally.6 This is special true since

conflicts arising between Commonwealth and State jurisdiction were possible

within the judicial structures of the Federation.7

Through the cross- vesting legislation a plaintiff is now able to sue an individual

and enforce liability in a state or territory outside where the incident occurred.

However, this is based on two conditions, the first being if that incident had

occurred in the state or territory where the matter is being brought forward that it

4 Section 9,Administrative Decisions (Judicial Review) Act 1977

5Enid Campbell, Cross-vesting of Jurisdiction in Administrative Law Matters, Monash University

Law Review Vol 16 No.1,1990,pg 1,

<http://www.austlii.edu.au/au/journals/MonashULawRw/1990/1.pdf

6 Stephen Estcourt , “Cross Vesting Applications”, Derwent & Tamar Chambers, 12

th June

2012, <http://derwentandtamarchambers.com/2012/06/cross-vesting-applications/>

7 Cairns B, Australian Civil Procedure, 8th Edition, page 21

http://derwentandtamarchambers.com/author/stephen/

http://derwentandtamarchambers.com/

http://derwentandtamarchambers.com/2012/06/cross-vesting-applications/

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would give cause or action, the second being that where the incident occurred

there is rise of civil liability which is continuing.8

III Transfer of proceedings

Federal Parliament has the constitutional power to vest Federal jurisdiction in

State Courts and Territory jurisdiction in Federal Courts. The power for cross-

vesting between states is not so clearly defined. However plenary state power,

coupled with the Australia Act 19869, would be sufficient to support the scheme.

In saying this it was held in Re Wakin; Ex parte McNally (1999) 198 CLR 511;

(1999) 163 ALR 27010

that aspects of the cross-vesting scheme are invalid. This

was because of Chapter III of the Constitution11

in which the jurisdiction of courts

is given. It was held that the cross-vesting scheme which conferred state

jurisdiction on federal courts went against this. Even though earlier it was held in

BP Australia Ltd v Amann Aviation Pty Ltd (1996)137 ALR 44712

that the cross-

vesting scheme was valid. Re Wakim, Ex parte McNally13

also lead to the

8 Breavington v Godleman (1988) 169 CLR 41, McKain v RW Miller (1991) 174 (1991) 174 CLR

1, Stevens v Head (1992) 176(1992) 176 CLR 433 and John Pfeiffer Pty Ltd v Rogerson (2000)

203 CLR 503.

9 Australia Act 1986

10 Re Wakin; Ex parte McNally (1999) 198 CLR 511; (1999) 163 ALR 270

11 Chapter III Commonwealth of Australia Constitution Act

12 BP Australia Ltd v Amann Aviation Pty Ltd (1996)137 ALR 447

13 Re Wakin; Ex parte McNally (1999) 198 CLR 511; (1999) 163 ALR 270

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amendment of s 5(1) and (4).14

This matter also lead to the insertion of s 5(9)

which limited what proceedings can be transferred between courts and the

decisions that needed to be taken into account when transferring the matters.15

Other than the above stated issues with the validity of the cross-vesting scheme it

can be seen that the scheme can vest the subject matter jurisdiction of a

particular court into other courts however if this extends to the territorial

Jurisdiction is still in doubt. This was pointed out in David Syme & Co Ltd v

Grey (1992) 38 FCR 303. It held that the cross-vesting legislation only effected

the subject matter jurisdiction and not the personal Jurisdiction of the participating

courts.16

It is also important to note that with matters where a transfer of proceedings is to

occur there are two circumstances this can happen in. The first being if a related

matter has commenced in another court and is a participating court in the cross

vesting scheme regardless of if they are between the same parties the requirements

state that there needs to be some degree of causality between them17

or a

substantial common question arising.18

The second being that there be no relation

14

s 5(1) and (4) Commonwealth of Australia Constitution Act

15 s 5(9) Commonwealth of Australia Constitution Act

16 See at 310 per Neaves J; at 331-2 per Gummow J.

17 Re Hamilton-Irvine (1990) 94 ALR 428 at 432-3 per Beaumont J.

18 Skaventzon v Tirimon (1993) 61 SASR 103

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between the matters and courts should to continue to hear matters which fall under

their jurisdiction.19

This can be seen ins Down to Earth Spring Water v State

Bank of NSW20

, where relief was to be claimed under the FTA act in the Federal

Court. The matter was transferred to the supreme court, as it was believed that this

was because it was seen as the 'natural forum' for the proceedings.21

In NSW Court of Appeal the criteria for transferring proceedings under interest of

justice was addressed in Bankinvest AG v Seabrook. It also addressed the role the

courts play and the use of their discretion in the matter giving consideration to

s.5.22

Rogers AJA stated:

“No longer is it appropriate to regard the court of another state, as "foreign".

One consequence of this is that the principles of 'forum non conveniens' applied in

circumstances where the competition is between an Australian and a non-

Australian court, have no role to play in the resolution of applications made

under the legislation or its interpretation. Instead, the criteria are more specific in

some respects ("interests of justice"), but also call for considerations of a more

general kind that the judicially established rules of forum non conveniens”23

19

Stephen Estcourt , “Cross Vesting Applications”, Derwent & Tamar Chambers, 12th

June


20 Down to Earth Spring Water v State Bank of NSW

21 Ibid

22 Bankinvest AG v Seabrook

23 Ibid




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It should be noted that n NSW proceedings can be transferred to the Supreme

Court if the matter is still be to heard in a court other than the Supreme Court or a

tribunal, this is so that consideration is given as to the appropriateness of the

transfer of the matter to another court.24

However when deciding if the matter is to

be transfer a persuasive onus must be provided25

but the plaintiff’s choice of

tribunal and the reasons for it are not to be taken into account.26

Gleeson CJ,

McHugh and Heydon JJ said:

“The reason why a plaintiff has commenced proceedings in a particular court

might, or might not, concern a matter related to the interests of justice. It might

simply be that the plaintiff’s lawyers have their offices in a particular locality. It

is almost invariably the case that a decision as to the court in which an action is

commenced is made by the plaintiff’s lawyers, and their reasons for making that

choice may be various. To take an example at the other extreme, it might be

because a plaintiff is near death, and has a much stronger prospect of an early

hearing in one court than in another. The interests of justice are not the same as

24 Jurisdiction of Courts (Cross-Vesting) Act 1987 ss8

25 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at [100]

26 BHP Billiton Ltd v Schultz (2004) 221 CLR 400

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the interests of one party, and there may be interests wider than those of each

party to be considered.”27

Other consideration are to be taken into account these include:

Where the parties/ witnesses reside

The location of the matter being in dispute;

The weight given to local knowledge for the matter to be heard and

resolved;

“the law governing the relevant transaction, especially if the matter

involves the construction of State legislation”28

;

the availability of procedures in the different courts;

the availability of dates to hear the matter in the different courts;

if the matter is required to be transferred to a specialised court, 29

;

“an exclusive jurisdiction clause nominating the courts of a particular

State for the resolution of disputes”30

27

Ibid

28 Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233

29 Lambert v Dean (1989) 13 Fam LR 285

30 West’s Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (unrep,

6/8/97, NSWSC).

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It should noted that the court transferring the matter does not have to exercise the

cross-vesting Jurisdiction. The provisions in the legislation apply to any relevant

court if it is held that it is more appropriate for another court to hear the matter.

However in saying this there is a criteria that this decision is to be based on. These

include that without regard to the cross vesting scheme that the matter or a part of

the matter is capable of being heard in another court, that the court would have

had jurisdiction regardless of the cross-vesting legislation had the jurisdiction to

hear the matter based on the application, interpretation or validity of the law and

the last being in the interest of justice.

It is stated in the cross vesting legislation that when a matter to be heard that is not

a special federal matter which is stipulated in the legislation and the defined

circumstances exist it can be transferred to another court.31

This power is able to

31

s5 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) (a) When it appears to the first court

that the proceeding 'arises out of, or is related to, another proceeding pending' in another court

within the system and that 'it is more appropriate' that the proceeding before it be determined by

that other court.

(b) When it appears to the first court that 'it is more appropriate' for the proceeding to be

determined by another court of the system having regard to three factors: (i) whether, apart from

the cross-vesting legislation, the proceeding before the first court, or any substantial part of it,

'would have been incapable of being instituted' in the first court; (ii) 'the extent to which, in the

opinion of the first court, the matters for determination in the relevant proceeding are matters

arising under or involving questions as to the application, interpretation or validity of a

law' of the other polity; and (iii) 'the interests of justice'.

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be exercised through application by the party, through a motion from the court

where the matter is to be heard or the applicable Attorney-General.32

However, the

decision in relation to transfer of matters cannot be appealed33

and while courts

follow the duty to transfer provisions in the legislation they are able to exercise

their discretion.34

This is because a judgement is made regarding the interests of

justice if to be determined in another court that the matter would be transferred to.

The legislation confers the legally relevant considerations which are to be taken

into account. However the New South Wales Court of Appeal, has stated that the

doctrine of forum non convenient and its notions do not have standing.35

(c) When it appears to the first court that 'it is in the interests of justice that

the . . . proceeding' before it be determined by the other court.

32 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s 5(7).

33 Section 13 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)


th June


35 Though Rogers A J A, in the case referred to supra fn 6 1 at 728, suggested that the concept

of 'the appropriate forum' enunciated by Lord Goff of Chieveley in Spiliada Maritime

Corp v Cansulex Ltd [I9871 1 AC 460,476 (and accepted by the other Lords of Appeal) broadly,

the same as the concept of the appropriate forum which underlies the Australian cross-vesting

legislation. Kirby P expressly declined to pronounce on the relevance of that English doctrine (71

6). Rogers CJ (Comm. D) elaborated his views on the considerations which may properly be taken

into account in applying the 'interests of justice' test in Seymour-Smith v Electricity Trust of South

Australia (1989) 17 NSWLR 648, 662.




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In administrative law three scenarios arise when the transfer of provisions of the

legislation would affect proceedings. These include application that have been

made under the ADJR Act36

that is still to be heard before the Federal Court or

matters to be heard under the Supreme court of state that is an action for damages

against either a respondent of the commonwealth. With regard to action brought

before the Supreme Court of a state falling under s 39(2) of the Judiciary Act

190337

the matter requires a determination to be made with regard to the validity

of the decision to be reviewed before it is transferred to the Federal Court. The

Supreme Court would then be required to decide if it is appropriate for the Federal

Court to determine such a matter.38

The next is the same scenario as above however the application of review

involves a respondent only and either the exercise of State jurisdiction or federal

jurisdiction under s 39(2) of the Judiciary Act 1903.39

A determination is again

required to address the validity of the application for judicial review of the

decision. The Supreme Court is required to transfer the application to the Federal

Court unless an order is made for the matter to continue to be heard before it. This

36

Administrative Decisions (Judicial Review) Act 1977.

37 39(2) of the Judiciary Act 1903


th June


39 s 39(2) of the Judiciary Act 1903




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may be because of a pending civil matter related to the proceedings. However, the

matter could still be transferred to the Federal Court based on interests of justice.40

The final scenario is a matter for judicial review under the ADJR Act41

to be

heard before the Federal Court. The Applicant is required to rely on the Courts

Cross vested jurisdiction in a State matter in which they make an application to

the Court for further remedy. The Federal Court will then determine if the second

proceeding is able to be heard by the relevant Supreme Court. This decision

would be based on the idea if the Court where the matter is to be transferred to

would have jurisdiction to hear the matter regardless of the cross-vesting

Legislation and if it is in the interest of justice.42

It can be seen that when a matter is put forward for a Judicial Review at the

Federal Court that it would of a benefit for the party to not put forward the matter

to the Supreme Court unless the matter is to be associated with a state matter or

where the Federal Court does not poses or may arguably may not possess unless

the matter is transferred under the cross-vesting legislation.

40

Stephen Estcourt , “Cross Vesting Applications”, Derwent & Tamar Chambers, 12th

June



42 Ibid




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Even if a party does an application to the Federal Court under the ADJR Act43

or s

39B of the Judiciary Act 190344

and wishes to claim damages or restitution

connected to the matter/s raised the matter may still fail in the Federal jurisdiction

or even if it is a state matter in which it has jurisdiction under the cross-vesting

legislation. However, if the matter is one that the Federal court does not possess

the jurisdiction except by transfer45

, it is advised that the matter be initiated in

State Supreme Court. Another option may be to initiate the judicial review of the

matter in the Federal Court, however, to initiate the matter of damages or

restoration in the Supreme Court. Through transfer both matters will be decided

through one court.

VIII CONCLUSION

The cross-vesting legislation has restored to state supreme courts much of the

federal supervisory jurisdiction of the Federal Court for judicial review that they

had before the implementation of s 9 ADJR Act.46

However, it should be noted

that the provisions of the Act that allow the courts to excises this power are

restricted to special federal matters so that the supervisory jurisdiction is limited

to and continues to be practiced by the High Court and Federal Court.

43

Administrative Decisions (Judicial Review) Act 1977

44 39B of the Judiciary Act 1903

45 s 39(2) of the Judiciary Act 1903

46 s 9 Administrative Decisions (Judicial Review) Act 1977

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It has been recommended by the Administrative Review Council that s 9 of the

ADJR47

Act should remain regardless of the Cross-vesting Legislation.48

This was

to maintain that matters that where matters of the federal judiciary were not to be

reviewed in State Court.49

However, this misrepresents the current law and if there

is a want for the state courts to be stripped of their federal supervisory jurisdiction

possessed under s 39(2) of the Judiciary Act 190350

but to allow state supreme

courts the same jurisdictional power of the Federal Court under the ADJR Act51

and s 39B of the Judiciary Act 1903,52

a new section would have to be created to

speculate this notion.

It can be seen be seen that the above statement is in fact true and that regardless of

the constitutional invalidity of the cross vesting scheme that is in contradiction to

chapter III of the Constitution, the cross vesting scheme does not extend to the

territorial jurisdiction. As stated above in David Syme & Co Ltd v Grey (1992) 38

47

s9 Administrative Decisions (Judicial Review) Act 1977.

48 Administrative Review Council Report to the Attorney-General Review of the Administrative

Decisions (Judicial Review) Act: The Ambit of the Act (Report No 32 - 1989)

116.

49 Ibid

50 s 39(2) of the Judiciary Act 1903.


52 s 39B of the Judiciary Act 1903.

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FCR 30353

it only has the effect of vesting the subject matter jurisdiction and that

that of the personal court.

53

David Syme & Co Ltd v Grey (1992) 38 FCR 303

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Appendices

a. Bibliography

A Articles/Books/Reports:

Administrative Review Council Report to the Attorney-General Review of the

Administrative

Cairns B, Australian Civil Procedure, 8th Edition, page 21

Decisions (Judicial Review) Act: The Ambit of the Act (Report No 32 - 1989)

B Cases


Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991)

5 ACSR 233

Bankinvest AG v Seabrook

BHP Billiton Ltd v Schultz (2004) 221 CLR 400

Breavington v Godleman (1988) 169 CLR 41, McKain v RW Miller (1991) 174

(1991) 174 CLR 1

Corp v Cansulex Ltd [I9871 1 AC 460,476

Down to Earth Spring Water v State Bank of NSW

James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

Lambert v Dean (1989) 13 Fam LR 285

Re Hamilton-Irvine (1990) 94 ALR 428

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Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648,

Skaventzon v Tirimon (1993) 61 SASR 103

Stevens v Head (1992) 176(1992) 176 CLR 433

West’s Process Engineering Pty Ltd (Administrator Appointed) v Westralian

Sands Ltd (unrep, 6/8/97, NSWSC).

C Legislation

Australia Act 1986


Commonwealth of Australia Constitution Act

Judiciary Act 1903

Jurisdiction of Courts (Cross-Vesting) Acts 1987

D Website

1Enid Campbell, Cross-vesting of Jurisdiction in Administrative Law Matters,

Monash University Law Review Vol 16 No.1,1990,pg 1,

<http://www.austlii.edu.au/au/journals/MonashULawRw/1990/1.pdf

Stephen Estcourt , “Cross Vesting Applications”, Derwent & Tamar

Chambers, 12th

June 2012, <http://derwentandtamarchambers.com/2012/06/cross-

vesting-applications/>






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Judicial Commission of New South Wales, “Cross-vesting legislation”, Judicial

Commission of New South Wales, 23 December 2013

<http://www.judcom.nsw.gov.au/publications/benchbks/civil/cross-

vesting_legislation.html>






Territorial jurisdiction

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