JURISDICTION, CROSS-VESTING AND TRANSFER

A.        Territorial Jurisdiction ('in personam' jurisdiction)

·       Territorial jurisdiction refers to the person or bodies over whom the court may exercise jurisdiction.

·       The basis for jurisdiction in personam may be:

1.  Defendant's presence in the jurisdiction (Laurie v Carroll)

2.  Submission by the defendant, eg.

-        entry of an unconditional notice of intention to defend

-        by express agreement

(i)        Presence in the Jurisdiction

·       The principal basis for jurisdiction over an action in personam, is the presence of the defendant in the jurisdiction

Laurie v Carroll

Facts: -      pl. issued a writ of summons out of the Supreme Court of Victoria, the day after the def. (Laurie) left Victoria with no intention of returning -      pl. obtained orders including an order giving leave to serve the writ of summons within the jurisdiction by substituted service (ie. upon a firm of solicitors who had acted for L) -      L applied (without entering an appearance or conditional appearance) to discharge the ex parte order for substituted service (and other orders) -      L's application was dismissed at first instance, and then L appealed to the HC (by special leave) Held: per Dixon CJ, Williams and Webb JJ -      the common law doctrine is that the writ does not run beyond the limits of the State -      under the federal Service and Execution of Process Act 1901-53, it may be endorsed and be served elsewhere within the Commonwealth and the Territories (under the conditions of that Act) -      under s.139 Supreme Court Act 1928, in certain cases described therein, the court or judge may allow service in any place outside Victoria -      the defendant must be amenable or answerable to the command of the writ, which depends primarily upon presence in the jurisdiction -      where a writ cannot be legally served upon a defendant, the court can exercise no legal jurisdiction over him/her -      hence in an action in personam, the rules of service define the limits of the courts jurisdiction -      service should be personal, but if personal service cannot be effected, the court may allow substituted or other service (service on a def. who is present in the jurisdiction at the time for service of the writ) -      the rival theory is that the critical time is the issue of the writ - ie. the issue of the writ is the exercise of jurisdiction over the defendant and it is enough that he/she is then in the jurisdiction. Hence, service remains necessary as a condition of incurring the consequences of default -      if a defendant knowing of the issue of the writ goes abroad before personal service (although he does not positively know of the fact of issue of the writ), he may be treated as under notice of the obligation -      however, the criticism of this is that, if jurisdiction is based on personal service, it must have cased when the subject left the jurisdiction -      the accepted view is that it is enough that the defendant is present in the jurisdiction at the time of service: Ø  it does not matter why, unless he has been enticed there fraudulently for the purpose Ø  it does not whether his is a foreigner or a subject of the Crown Ø  it does not matter how temporary may be his presence -      L neither by reason of past history nor present domicile, residence or course of business stood in any general relation to the State of Victoria which would make him prima facie subject to the jurisdiction of the courts of the State -      unless the case can be brought within the 2 statutory exceptions, the court exercised jurisdiction that it did not possess in order substituted service -      the order for substituted service ought not have been made

(ii)       Submission to the Jurisdiction

·       A court will also gain jurisdiction where a defendant, though not present in the jurisdiction, voluntarily submits to the jurisdiction, eg. defendant enters an unconditional appearance (Perkins v Williams)

·       There will be no submission if the defendant, not entering an appearance, protests the jurisdiction of the court (Re Dulles Settlement (No 2))

·       In action in contract, the parties may submit to the jurisdiction by express agreement in the contract that disputes be referred to a particular court (Vogel v Kohnstamm). A clause which permits a choice of law does not amount to submission (Dunbee v Gilman & Co)

(iii)     Statutory extension of territorial jurisdiction

·       A court may have jurisdiction over a defendant outside the jurisdiction who is validly served with the proceedings (Dixon CJ, Williams & Webb in Laurie v Carroll).

Service outside a state or territory but within Australia

·       Service is exclusively governed by the Service and Execution of Process Act 1992 (Cth) which gives the courts of the states and territories Australia-wide in personam jurisdiction (Kontis v Barlin)

Service outside of Australia

·       Service is governed by the Rules of the Court

·       The Federal Court, the High Court and all state and territory supreme courts have rules which allow an initiating process to be served on a defendant outside Australia. These rules generally require some nexus between the case or defendant and the forum before the court will have jurisdiction

B.        Subject Matter Jurisdiction

·       Subject matter jurisdiction refers to the nature of the disputes that may be adjudicated upon by the particular court.

·       Commonwealth judicial power may only be exercised by one of the three classes of courts listed in s.71 Constitution (the High Court, a Federal Court created by the Commonwealth Parliament, and state and territory courts which are vested with jurisdiction pursuant to Ch III).

·       Jurisdiction which any federal or state or territory court has by virtue of a provision of Ch III is federal jurisdiction.

(i)        High Court

Original Jurisdiction

Under the Constitution

·       Defined by s.75 Constitution, as "in all matters:

(i)         arising under any treaty

(ii)        affecting consuls or other representatives of other countries

(iii)       in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party

(iv)       between States, or between residents of different States, or between a State and a resident of another State

(v)        In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth"

·       Section 76 provides a source of potential additional jurisdiction, by granting the Parliament with the power to make laws conferring original jurisdiction on the HC in any matter -

(i)         arising under the Constitution or its interpretation

                        (ii)        arising under any laws made by the Parliament

                        (iii)       admiralty and maritime jurisdiction

                        (iv)       relating to the same subject matter claimed under laws of different States

·       Section 77 grants the Parliament the power to make laws:

(i)         defining the jurisdiction of any federal court (except the HC)

(ii)        defining the extent to which the jurisdiction of any federal court shall be exclusive

(iii)       investing any court of a State with federal jurisdiction

·       Parliament has exercised s.76(i) through the Judiciary Act 1903 (Cth), s.30(a) which confers original jurisdiction on the HC in all matters of arising under the Constitution or involving its interpretation.

Under the Judiciary Act 1903 (Cth)

·       Section 38 in effect vests within the exclusive jurisdiction of the HC those matters which are within the original jurisdiction of the HC and which may be regarded as having the greater national or federal significance

·       The section enables the HC, either of its own motion or on the application of party, to remit a matter or a part of a matter pending in the HC to the Federal Court or a court of state or territory.

Appellate Jurisdiction

·       Section 73 Constitution grants the HC the power to (finally and conclusively) hear and determine appeals from all judgements, decrees, orders and sentences -

(i)         of any Justice(s) exercising the original jurisdiction of the HC

(ii)        of any other federal court, or court exercising federal jurisdiction, or of the Supreme Court of any State, or any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council

(iii)       of the inter-state commission, but as to questions of law only

·       The power in s.73 is subject to s.34 Judiciary Act 1903 (Cth), which requires leave of the HC be sought to bring an appeal from any interlocutory judgement

·       Parliament has also created a number of exceptions to the jurisdiction under s.73 (eg. there is no right of appeal from a federal court single judge decision, and a full court decision requires special leave)

·       The Supreme Court of a federal territory is not a federal court or a court exercising federal jurisdiction within s.73 of the Constitution (Capital TV and Appliances v Falconer)

(i)        Federal Court

Original Jurisdiction

·       The Federal Court of Australia was created by the Federal Court of Australia Act 1976 (Cth) in exercise of the power conferred under s.71 Constitution

·       Section 19 Federal Court of Australia Act 1976 (Cth) provides that the court has such original jurisdiction as is invested in it by the laws made by the Parliament. This includes any jurisdiction invested in it to hear and determine appeals from decisions of persons, authorities of tribunals other than courts.

Exclusive Jurisdiction	Concurrent Jurisdiction	No Longer Jurisdiction
-        Pt IV Trade Practices Act -        Commonwealth Taxation laws -        appeals from decisions of the Commissioner of Patents and from the Registrars of Trade Marks and Designs	-        Div 1 ('Unfair Practices') and 1A ("Product Safety') of Pt V ('Consumer Protection') TPA -        industrial and intellectual property legislation -        administration law and bankruptcy matters -        certain matters under the Native Title Act -        civil proceedings arising under Corporations Law	-        industrial law maters

Appellate Jurisdiction

·       Prescribed in Div 2 Pt III Federal Court of Australia Act

·       Section 24(1) provides that the FC has jurisdiction to hear and determine:

(i)         appeals from a single judge of the Federal Court

(ii)        appeals from the Supreme Court of a territory (except NT)

(iii)       appeals from state courts exercising federal jurisdiction (except Full Courts)

Reference Jurisdiction

·       Section 25(6) Federal Court of Australia Act provides that a single judge of the FC may state any case or reserve any question concerning a matter in respect of which an appeal would lie from a judgement to the Full Federal Court.

Associated Jurisdiction; Accrued Jurisdiction

·       Section 32 Federal Court of Australia Act provides that, to the extent that the constitution permits, jurisdiction is extended in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction is invoked

·       Subsequently, the jurisdiction is conferred only in respect of matters in ss.75 and 76 Constitution

·       The Federal Court also has an 'accrued jurisdiction' based on ss.76(ii) and 77(i) Constitution, and ss.19 and 22 Federal Court of Australia Act. This is discretionary jurisdiction enabling the determination of non-federal claims which are part of the same 'matter' as the claim within the Federal Court's primary jurisdiction (Philip Morris v Adam P Brown Male Fashions)

·       The HC in Fencott v Muller makes it clear that the federal and non-federal claim joined in the proceeding must both fall within the scope of controversy, and hence within the ambit of the one 'matter'

Fencott v Muller

Facts: -      claims were made for breach of the TPA, along with alternative claims at common law for fraud, negligence and breach of contract -      the claims related to allegedly false representations made by the respondents as to the profits and turnover of a business subsequently purchased by one of the applicants -      additional parties were also involved in related claims which included breach of fiduciary duty and claim for an indemnity -      an objection was taken in the Federal Court to the jurisdiction of the court, and 3 of the respondents appealed to the full court, contending the proceedings were wholly outside the jurisdiction of the Federal Court -      the appeal was removed to the HC, who by majority, affirmed the FOREIGN CURRENCY decision Held: per Mason, Brennan and Deane JJ -      though the concept of "matter" may be narrower than that of "legal proceeding" it is a term of wide import -      Barwick CJ in Philip Morris stated: "It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued jurisdiction is not limited to matters incidental that aspect of the matter which has, in the first place, attracted federal jurisdiction. It extends…to the resolution of the whole matter between the parties." -      though facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under a federal law -      Mason J in Philip Morris set out the guiding principle: "…it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction" -      claims which are "completely separate and distinct from the matter which attracted federal jurisdiction" (per Murphy J in Philip Morris) or "some distinct and unrelated non-federal claim (per Stephen, Mason, Aickin and Wilson JJ in Moorgate Tobacco) cannot be determined by the exercise of judicial power referred to in s.71 Constitution -      it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are withint he scop of one controversy and thus within the ambit of a matter

·       The FC will not have any accrued jurisdiction if the primary claim is untenable or not genuinely pursued or is clearly so untenable that it could not possibly succeed (NSW Land Council v ATSIC)

·       If the primary claim is genuine the court will retain the accrued jurisdiction to determine the attached non-federal claims even if the primary federal claim fails (Burgundy Royale Investments v Westpac)

Inherent Jurisdiction

·       The Federal Court is a court of statutory jurisdiction and subsequently does not have inherent jurisdiction in the same way as Supreme Courts (Jackson v Sterling Industries)

·       However, the Federal Court's powers extend to 'whatever is incidental and necessary to exercise of that jurisdiction and to the exercise of any powers conferred by legislation' (Wardley Australia v WA) (eg. powers to control and supervise its own proceedings, prevent abuse of process, etc)

(ii)       Supreme Court

Original and Appellate Jurisdiction

·       Section 8(1) Supreme Court of Queensland Act 1991 (SCQA) provides that the supreme court has all the jurisdiction that is necessary for the administration of justice in Queensland. Sub-section (2) provides that (a) the court is the supreme court of general jurisdiction in and for the State, and (b) has unlimited jurisdiction at law, in equity and otherwise (subject to the Cth Constitution)

·       Section 9 SCQA 1991 preserves jurisdiction vested in the Court prior to the Commencement of the Act, and s.7 continues the court as a Court of record.

·       In determining whether a supreme court has particular jurisdiction, it is necessary not only to refer to the general jurisdiction of the court, but the limits imposed upon state courts as being part of the federal structure, and the impact of specific statutes dealing with heads of subject matter (ref: Kable v DPP)

·       The jurisdiction of the Supreme court is founded on 2 independent basis:

(1)        Supreme Court Act 1867 (ss.34 & 35) which vested the court with the jurisdiction and authority that the Supreme Court of NSW exercised in the territory of Queensland.

(2)        Supreme Court Act 1867 (ss.21-24) which vested the court with jurisdiction co-extensive with the English Common Law and Equity courts at the date of the Act.

Federal Jurisdiction

·       Section 39 Judiciary Act 1903 (Cth) provides that the several Courts of the States shall within their several jurisdictions, be invested with federal jurisdiction in all matters in which the HC has original jurisdiction or in which original jurisdiction can be conferred upon it (Constitution ss.75 & 76), except matters which are exclusively the jurisdiction of the HC (Judiciary Act ss.38 & 39A)

·       State Courts may also be invested with certain federal jurisdiction by the Cth Parliament under s.77(iii) Constitution.  Under that power, s.39 Judiciary Act divests the state courts of any inherent state jurisdiction in relation to any matter mentioned in ss.75 and 76 Constitution, and then invests them with federal jurisdiction in respect of some of those matters (all matters except constitutional matters and matters which are exclusively the jurisdiction of the HC). 

·       The main areas of concurrent federal jurisdiction include bankruptcy, industrial and intellectual property legislation, and Div 1 and IA of Pt V of TPA.

Inherent Jurisdiction

·       The jurisdiction of a supreme court includes all those powers which are necessary to enable it to act effectively and control its own proceedings and to prevent obstruction or abuse of its process, eg.

-        making practice directions (Langley v North West Water Authority)

-        awarding costs and making orders for security for costs (Rajski v Computer Manufacture and Design)

-        staying or striking out actions or pleadings which are frivolous, vexatious or an abuse of process (General Steel Industries v Commissioner for Railways)

·       The inherent jurisdiction extends to making its own arrangements in relation to the exercise of its jurisdiction (Rajski v Wood)

(iii)     District Court

Original Jurisdiction

·       The District Court is an inferior statutory court. Most of its jurisdiction is prescribed by s.68 District Courts Act 1967 (Qld).  The powers of the court in exercise of its jurisdiction are set out in s.69.

(iv)      Magistrate's Court

·       The jurisdiction of the Magistrate's Court is limited to a monetary sum of $50,000 (s.4 Magistrates Courts Act 1921)

C.        Cross-Vesting of Jurisdiction

(i)        Purpose of the cross-vesting scheme

·       It was the desire to avoid the inconvenience and expense associated with exclusive state and federal jurisdictions that in led to the state and federal legislatures passing a number of acts in 1987, collectively referred to as the cross-vesting scheme (which took effect 1 July 1988).

·       The scheme has 2 basic components:

(1)        the investment or conferral of original and appellate jurisdiction on the participating courts

(2)        a mechanism for the transfer of proceedings

(ii)       Investment and conferral of jurisdiction

·       The legislation:

-        Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld)

-        Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

-        Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth)

·       Under the scheme, all state and territory courts are vested with most civil jurisdiction of the Federal Court and Family Court (both original and appellate).

·       The legislation intended to give the Federal Court and Family Court original and appellate jurisdiction in respect of state matters.

·       Section 4 of the Jurisdiction of Courts (Cross-Vesting) Act (Qld) confers the jurisdiction on the courts in question, and s.9 Jurisdiction of Courts (Cross-Vesting) Act (Cth) authorises the exercise of the jurisdiction conferred.

·       The supreme court of another state or territory may exercise original and appellate jurisdiction with respect to State matters.

·       The validity of the scheme was considered by the HC in Re Wakim

Re Wakim; Ex parte McNally (1999) 198 CLR 511

Facts: -      The primary issue for determination by the HC was whether the cross-vesting schemes by which State judicial power was conferred on federal courts, implemented by cooperative legislation enacted by the Cth, State and Territory parliaments, was valid. -      Four sets of proceedings were heard together (facts are not relevant to the relevant issue) Held: (in brief) -      the scheme validly vests all state and territorial courts with most civil jurisdiction of the Federal Court and Family Court -      the scheme validly vests the Federal and Family Courts with original and appellate jurisdiction with respect to state matters, but the s.9 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) which authorises the exercise of that jurisdiction, was held to be unconstitutional -      the cross-vesting scheme is constitutionally invalid (per Gummow & Hayne, with Gleeson, Gaudron, McHugh and Callinan agreeing) -      While there may be no reason why the parliament of a State cannot pass a law that provides the courts of another polity within or outside the federation are to have jurisdiction over certain kinds of matters, that law will be of no effect unless the courts of the other polity give it effect. -      No other polity can confer jurisdiction on Federal courts under the Constitution (ss.75 - 77) -      The cross-vesting legislation cannot be described as laws with respect to matters incidental to the execution of a power vested by the Constitution in the federal judicature.

(iii)     Nature of Jurisdiction conferred

·       There is no doubt that the cross-vesting scheme has the effect of vesting the 'subject matter jurisdiction' of any particular court in the scheme in any other courts, but there is some doubt as to whether it extends to 'territorial jurisdiction'.

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

Facts: -      the respondent issued a writ against the appellant out of the SC of the ACT, claiming in relation to defamatory material concerning the plaintiff published in the ACT and throughout Australia -      the writ was endorsed out of the ACT and Victoria -      the appellant entered no appearance, but give notice of motion to stay the proceedings as being inappropriate for the granting of liberty to proceed under the s.11(1) Service and Execution of Process Act 1901 (Cth) (which authorises out of jurisdiction service if there is a sufficient nexus with the jurisdiction) -      the respondent obtained an order of the SC of the ACT to proceed, and the appellant appealed by leave, to the Full Court Held: by the Full Court on appeal -      in relation to claims for damages based on publication outside the ACT, there was clearly not a sufficient nexus with the ACT for the granting of leave under s.11(1) -      it was argued that the SC had cross-vested jurisdiction which could be exercised without reference to the nexus requirement, which the court rejected -      the court held that the cross-vesting legislation should be construed as affecting only subject matter jurisdiction, leaving service of process, etc (personal jurisdiction) to be dealt with under the otherwise applicable rules -      Nb. the jurisdiction issue concerning inter-state service is no longer good law pursuant to the enactment of the Service and Execution of Process Act 1992 (Cth) which gives the SC of the states and territories Australia-wide in personam jurisdiction

·       Note that there has been academic support for the contrary view that the cross-vesting scheme should not be read down, so as to relate to 'subject-matter' jurisdiction only

(iv)      Transfer of Proceedings

·       To ensure the cross-vesting scheme does not foster forum shopping and so that state courts deals with issues of their own state law and federal courts determine issues of federal law, the scheme contains provisions for the transfer of proceedings in certain cases to more appropriate courts

·       Section 5 Jurisdiction of Courts (Cross-Vesting) Act is the key provision, requiring transfer of proceedings in specified cases (set out below):

Case 1: "Related" proceedings have been commenced in different courts

	SENDING COURT Case pending eg. Qld Supreme Court				RECEIVING COURT Case pending eg. NSW Supreme Court

 

The conditions required for transfer are as follows:

·       It must appear to the sending court that:

(1)        the proceeding arises out of or is related to another proceeding pending in the receiving court

AND

            it is more appropriate that the proceeding be determined by the receiving court                 

OR

(3)        it is otherwise in the interests of justice that the proceeding by determined in the receiving court

·       It is not essential that the 'related' proceeding be between the same parties, there need only be some degree of causality between them (Re Hamilton-Irvine) or a substantial common question arising in both proceedings (Skaventzon v Tirimon)

Case 2: No case pending in the receiving court

	SENDING COURT Case pending				RECEIVING COURT No case pending

 

            (2)        having regard to (3 factors):

(a)        whether, apart from the cross-vesting scheme, the proceeding or a substantial part of it would have been:

-        incapable of institution in sending court; and

-        capable of institution in receiving court

AND

(b)        the extent to which matters for determination require application or laws of jurisdiction of receiving court not within jurisdiction of sending court except for cross-vesting scheme.

AND

                        (c)        the interests of justice

                        it is more appropriate that the proceeding be determined in the receiving court

OR

(3)        it is otherwise in the interests of justice that the proceedings be determined in the receiving court.

·       The criteria requires consideration of the 'traditional forum' for the subject matter of the litigation, for example, in Down to Earth Spring Water v State Bank of NSW, relief was sought under the FTA in the Federal Court, and subsequently transferred to the supreme court as the 'natural forum' for the proceedings

·       Questions arise as to what the criteria are for the transfer of proceedings in the 'interest of justice', and what is the role of the court in exercising the discretion under s.5.  This issue was considered by the NSW Court of Appeal in Bankinvest AG v Seabrook

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 (Court of Appeal)

Facts: -      the plaintiff (a Swiss corporation located in Sydney) commenced proceedings in the Commercial Division of the SC of NSW -      the pl.'s business involved making loans to Australian companies/individuals -      in essence, the claim made was for repayment of loans which had been guaranteed by the defendants (11 of which were located in Qld, 7 in Victoria, 7 in NSW and 5 in Tasmania) -      the def.'s cross-claimed for, inter alia, an order under the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the proceedings be transferred to the SC of Qld -      the application was removed to the Court of Appeal Held: Rogers AJA -      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 -      Professor Crawford put it as follows: 1.     There is a prima facie presumption that the court, the jurisdiction of which was properly invoked, should exercise it. 2.     There is a onus on the person moving to transfer to show some positive basis on which it could be contended that the entitlement of the other party to exercise of the jurisdiction should be displaced. -      However, this approach should be rejected, as it entrenches the concept of one jurisdiction being foreign to another -      In Spiliada Maritime Corporation Lord Templeman said "The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case" -      In this case, an important aspect of the cross-claim is negligence against the Qld solicitors à determination of such an issue is better gauged by a local tribunal more closely aware of local practice and the demands imposed on solicitors -      It would also appear that convenience and expense would favour the dispute being heard in the SC of Qld, as the majority of the witnesses reside in Qld, and the cost of litigation is lower. -      The NSW proceedings should be transferred to Qld. Jurisdiction only by reason of cross-vesting -      It seems that the NSW SC has jurisdiction only by reason of the cross-vesting legislation The interests of justice: -      Absent the presence of related proceedings or inter-State law, the inquiry directed by consideration of the "interests of justice" encompass all the matters that determine which is the more appropriate forum that I have already discussed. -      The relevant considerations are essentially the same as were specified by the House of Lords in The Spiliada (which were held inapplicable in Oceanic Shipping by the HC, but Rogers suggests that this issue in Oceanic may be reviewed) è Rogers suggests that the proceedings should be transferred to Queensland Street CJ -      It is highly desirable that the judicial administration of the day-to-day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied whether considering making a transfer order. -      Principles of international law such as forum non conveniens have no place in a cross-vesting jurisdiction -      Street agreed with the reasoning and orders made by Rogers Kirby P -      agreed substantially with the reasons stated by Rogers and with the orders proposed, but specifically reserved any consideration of the principles established by Oceanic -      Kirby also reserved the question of whether any onus lies on the applicant for transfer NB. The holdings in this case that it is inapt to speak in terms of onus and that no weight should be ascribed to the plaintiff's choice of forum, and that the principles of private international law such as forum non conveniens have no placed when judges consider the making of a transfer order, have NOT been universally accepted.

Bourke v State Bank of NSW (1988) 85 ALR 61 (Federal Court of Australia)

Facts: -      the applicants commenced proceedings against the respondent Bank alleging breaches of the TPA, together with some common law claims -      the respondent sought orders striking out the paragraphs of the statement of claim which related to the TPA on the basis that there was no reasonable cause of action, and alternative orders that included the transfer of the balance of the proceedings to the SC of NSW pursuant to s.5(4) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Held: Wilcox J -      Whether an order should be made under s.5(4) for the transfer of a matter to the SC of NSW is to be resolved by reference to the criteria set out in the various sub-paragraphs of the section: Ø  Sub-paragraph (i) relates to the case where the relevant proceeding is linked with another proceeding pending in the relevant SC è this is not applicable here Ø  Sub-paragraph (ii) requires the court to have regard to the 3 cumulative criteria: (a) whether the relevant proceeding or a substantial part of it would have been incapable of being instituted in this court but capable of being instituted in the SC è this court has jurisdiction over all the issues raised (b) the extent to which the matters for determination in the proceeding are matters arising under a law of NSW and are not within the jurisdiction of the first court apart from the cross-vesting legislation è the first limb of the criteria is satisfied, the second is not (c)  the interests of justice è there is no factors which makes it possible to objectively say that it is in the interests of the justice for this matter to be heard and determined in one court rather than in the other Ø  Sub-paragraph (iii) requires the court to look if it appears it is otherwise in the interests of justice that the relevant proceeding be determined by the relevant SC. For an applicant's choice of forum to be overridden, there must be some objective factor which makes it possible to say that the interests of justice will be better served by transfer than by non-transfer. Where (as here) it is impossible to identify any such factor, the sub-paragraph has no application è is not applicable in this case -      None of the criteria are made out, and therefore the court does not have the power to accede to the application for transfer.

Amor v Macpac Pty Ltd (1989) 95 FLR 10 (SC of NSW)

Facts: -      pl. was the owner of a semi-trailer in long distance haulage, his home was at Coffs Habour. -      He hauled a load from Sydney to Brisbane and was injured in the course of unloading in Brisbane when an employee of the def. was operating a fork lift pushed into the load and caused some of it to roll off and crush him -      pl. was severely injured, and was treated in the Princess Alexandra Hospital in Brisbane, and subsequently in Coffs Habour -      pl. commenced action out of the SC of NSW, and the def. applied for an order under the cross-vesting Act that the proceedings be transferred to the SC of Queensland. Held: Allen J Where the Accident occurred -      It is of great importance in the present case that the accident occurred wholly in the State of Queensland à as any claim for damages will be determined in the accordance with the substantive law of the state/territory in which the action is bought.  Queensland legislation may markedly affect the quantum (applying a 5% discount rate v. 3% in NSW). However, this issue is not conclusive Place of Residence of the Parties -      The def. is a company incorporated in Queensland.  The pl. is a resident of NSW. Availability of Witnesses -      Considerations of their convenience and the relative costs of litigation must be weighed. -      The court found that it does not appear clearly in respect of the convenience of witnesses and the availability of witnesses, whether it would be more convenient to have the trial in NSW or Brisbane Expense of the Trial -      Having regard to the accommodation expenses, etc, required for members of the legal profession and for witnesses, the judge found that a trial in Coffs Habour (NSW) would be more costly that in Brisbane Orders -      The proceedings were transferred to the Supreme Court of Qld

·       Note that there is no requirement that the transferring court must be exercising cross-vested jurisdiction - the provisions apply to any proceeding pending in a relevant court

Right to Practice

·       Each of the cross-vesting Acts provides that where a proceeding is transferred the legal practitioners involved have the same right to practice in the court to which the proceeding is transferred as if the court were a federal court exercising federal jurisdiction: s.5(8)

·       The court may determine costs in relation to steps taken prior to transfer, unless those costs have already been dealt with by the court which transferred the proceedings: s.12

(v)       Applicable Law

·       Section 11 of the Commonwealth and State Acts provides for the appropriate law to be applied.  The basic rule is that the law in force in the state or territory in which the court is sitting is to be applied.

·       In relation to proceedings in the Federal Court or the Family Court, the reference to the state or territory in which the court is sitting is a reference to the state or territory in which the matter for determination first commenced.

·       There are 2 qualifications:

(1)        where the right of action arises under the written law of another state or territory, the written and unwritten law of that state is to be applied: s.11(1)(b)

(2)        in relation to the rules of evidence and procedure, the applicable rules are those that the hearing court considers appropriate in the circumstances: s.11(1)(c)

(vi)      Special federal matters

·       Special provisions govern the transfer of proceedings which involve 'special federal matters', which per s.3(1) Jurisdiction of Courts Act 1987 includes:

-        matters arising under the TPA

-        matters arising under the Competition Code

-        appeals on questions of law from Commonwealth tribunals

-        matters arising under the Administrative Decisions (Judicial Review) Act 1977

-        matters arising under the Family Law Act

-        etc

·       The effect of ss.6(1), (2) and (3) of the Commonwealth and State Acts is that the proceeding must be transferred to the Federal Court, unless the state or territory supreme court orders on the basis that it is satisfied that there are special reasons for doing so other than convenience of the parties.

·       Section 6(4) requires that the Commonwealth Attorney-General and the A-G of the State or Territory be notified and allowed reasonable time to consider whether submissions should be made

(vii)     Inferior Courts

·       Inferior courts do not have any cross-vested jurisdiction but they are included in the scheme in a limited way:

(a)        section 8 of each of the state Acts provides for the Supreme Court, on the application of a party to the proceedings or of its own motion, to remove proceedings pending in a court (other than a SC) or a tribunal up into the supreme court for the purpose of considering transferring them to another court in accordance with the cross-vesting scheme.

(b)        section 10 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) permits the Federal Court, the Family Court or the SC of a state/territory, on the application of a party to the proceeding or of its own motion to transfer to an inferior state court a proceeding otherwise within that inferior court's jurisdictional limits, if the proceeding involves a matter under Pt IVA, or Div I or IA under Pt V TPA and us not a appeal or a special federal matter. Section 10 of the state Acts are framed in the same terms, except they extend only to matters under the TPA Pt V Div 1 or IA.

(c)        section 86 TPA vests the civil jurisdiction of the Federal Court in relation to matters arising under Pt V Div I or IA on state courts within the limits of their several jurisdiction. Section 86 enables such cases to be transferred to the lower courts by the Federal Court.

(viii)   Limitation of appeals

·       The jurisdiction and transfer provisions of the cross-vesting legislation apply to matters within both original and appellate jurisdiction.

·       Section 7 of each of the cross-vesting Acts requires that appeals be brought within the appellate system of the court which made the primary decision.

·       Section 13 of each of the cross-vesting Acts provides that no appeal lies from a decision of a court in relation to the transfer or removal of a proceedings pursuant to the cross-vesting legislation, and there is no right of appeal in relation to the rules of evidence and procedure which are to be applied pursuant to s11(1).

(ix)      Procedure

·       Each of the courts in the cross-vesting scheme have their own rules providing for the procedural and mechanical means of implementing the scheme, which vary.

Interstate service

·       The cross-vesting laws contemplate service out of the jurisdiction.

·       The Service and Execution of Process Act 1992 (Cth) gives the SC of the states/territories, Australia wide in personam jurisdiction (see ss.12 & 15). Section 130 provides that the jurisdiction a court or tribunal has because of process under the Act is not affected by any limitation arising under a law of state concerning the locality in which the process may be served.

·       There are a number of rules of court (eg. RSC O 98, which requires leave to proceed to judgment in default of appearance if a proceeding is outside the state of issue) which have been held to be inconsistent with s.130 S&EP Act (Citibank v Nobes, Connors v Acheron, Swanson v Harley)

·       It is submitted to the extent that they purport to apply to proceedings served in another state/territory they are inconsistent with the Commonwealth Act and no longer limit service ex juris within Australia.

Queensland

·       Under O 98 r 3, a party who relies on cross-vesting laws is required to indorse the process by which those laws are involved with a statement identifying each claim or ground of defence, in respect of which the cross-vesting law are invoked. This ensures that reliance upon the cross-vesting laws is identified early, however failure to include the indorsement does not invalidate the process.

·       If a matter for determination is a special federal matter, the indorsement is to include particulars of that special federal matter, as the court is not permitted to determine a proceeding which raises such a matter unless it is satisfied that the notice required by s.6(3)(a) of the cross-vesting laws sufficiently specifies the nature of the special federal matter: O 98 r 4

·       The rules specify that the first party to invoke the cross-vesting laws must take out a summons for directions and serve it on all the other parties: O 98 r 6

·       Where a proceeding is transferred to the Queensland SC, the party who originated the proceedings is required to file and serve a summons for directions within 14 days of the date of the order transferring the proceedings.

D.        Transfer of Proceedings

·       The mechanisms for the transfer of proceedings has been considered above.  Note also, that there are a number of provisions outside the cross-vesting legislation which permit and govern procedures for transfer from one court to another [which are outside the scope of this Unit].