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Published online by Cambridge University Press: 24 January 2025
A re-examination of the application and effect of s 79 of the Judiciary Act 1903 (Cth) — that “tangled and technical” topic — is called for by three developments: the institution, in 1976, of the procedure which the High Court has used to remit all diversity suits to other courts; the establishment of the seat of the High Court in the Australian Capital Territory; and the enactment of cross-vesting legislation in all Australian jurisdictions.
Those events have raised problems as to the law applicable when a court is exercising federal jurisdiction. A related question, to which no consistently satisfactory answer has been given, is: which is the most appropriate court to which to remit any particular case? That problem will be discussed below, although it is likely to arise less frequently with the coming into force of the new legislation on the cross-vesting of jurisdiction.
The research assistance of Candida Brebner, final year student at the Law School, is gratefully acknowledged.
1 Suehle v The Commonwealth (1967) I16 CLR 353, 357per Windeyer. J.
2 Judiciary Act 1903 (Cth) s 44. In 1976, the then exisiting s 44 was repealed and replaced with the present one (Judiciary Amendment Act 1976 sub-s 9(1)).
3 High Court of Australia Act 1979 (Cth) s 14.
4 The legislation under which the scheme will operate is entitled Jurisdiction of Courts (Cross Vesting) Act 1987 in each jurisdiction. See Act No 24 of 1987 (Cth); No 125, 1987 (NSW); No 41,1987 (NT); No 88, 1987 (Qld); No 67, 1987 (SA); No 78, 1987 (Tas); No 29, 1987 (Vic); No 68,1987(WA).
5 For an explanation of the background to and an appraisal of the legislation see C Baker “Cross vesting of Jurisdiction between State and Federal Courts” (1987) 14 UQU I 18.
6 For reasons explained infra at n 26.
7 They cannot be commenced in the Federal Court as it does not have jurisdiction over such matters. Nor can they be instituted in State courts because of s 38 of the Judiciary Act which makes much of the s 75 jurisdiction exclusive to the High Court.
8 M Pryles and P Hanks Federal Conflict of Laws (1974), O'Brien “The Law Applicable in Federal Jurisdiction” (1975-1976) I UNSWU 327 cf PD Phillips QC “Choice of Law in Federal Jurisdiction” (1961) 3 MULR 170.
9 Musgrave v Commonwealth (1937) 57 CLR 514; Huddart Parker Ltd v The Ship Mill Hill & Her Cargo (1950)81 CLR 502; The Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168; Rv Oregan; Ex parte Oregan (1957) 97 CLR 323; Deputy Commissioner of Taxation for the State of NSW v Brown(1958) 100 CLR 32; Pedersen v Young (1964) 110 CLR 162; Parker v Commonwealth (1965) 112 CLR 295; Andersonv Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20; Suehle v Commonwealth (1967) 116 CLR 353; John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65but cf Mason J at 95. Also cf Pryles and Hanks Federal Confilct of Laws (supra at n 8). In Chapter 5 the authors refer toss 79 and 80 as “choice of law” rules.
10 The Commissioner of Stamp Duties (NSW) v Owens (No 2)(1953) 88 CLR 168; Pedersen v Young (1964) 110 CLR 162.
11 (1964) 110 CLR 162, 165.
12 In that instance, by converting a State limitation of actions provisions into a provision limiting the time for the commencement of actions outside that State.
13 For example Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502, in which Dixon J said, at 507, thats 79 “should be interpreted and applied liberally.” but cf John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65.
14 Musgrave v The Commonwealth (1937) 57 CLR 514, 47 per Dixon J;Huddart Parker Ltd vThe Ship Mill Hill and Her Cargo (1950) 81 CLR 502, 507;R v Oregan Exp Oregan (1957) 97 CLR 323, 331 per Webb J; EI Sykes and MC Pryles Australian Private International Law (1987), 278; Pryles and Hanks Federal Conflict of Laws supra n 8, 160-161.
15 Cases which use different substantive forms of the verb “to remit” have included: “remitter” in Centrepoint Freeholds v Lucas (1985) 60 ALR 187 Pozniak v Smith (1982) 151 CLR 38 andJohnstone v Commonwealth (1979) 143 CLR 398; “remission” inWeber v Aidone (1981) 36 ALR 345 Pozniak v Smith andJohnstone v Commonwealth; and “remittal” inRobinson v Shirley (1982) 149 CLR 132 andBargen v State Government Insurance Office (Queensland) and Another (1982) 154 CLR 318.
16 Section 44 states: “Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted.” Before 1976, remittal was provided for in s 45 of the Act but under that section the order for remittal could be made only on the application of a party. It can be argued that s 44 is unconstitutional in so far as it encompasses matters falling withins 75 of the Consitution: see Z Cowen and L Zines Federal Jurisdiction in Australia (2nd ed I978) 80, 81. As Sykes and Pryles point out, however, the final decision in such a matter would rest with the High Court; and as that Court has several times acted upon the provision by remitting a number of cases to State Courts, the result of a challenge to the validity of the section would scarcely be in doubt.Australian Private International Law (2nd ed 1987), 277
17 Z Cowen and L Zines supra nl6 83ff; Pryles and Hanks supra n 8 107.
18 For example, Australian Temperance and General Mutual Life Assurance Society v Howe (1922) 31 CLR 290; Z Cowen and L Zines Federal Jurisdiction in Australia supra n I6, 85; M Pryles and P Hanks supra n 8, I09.
19 M Pryles and P Hanks supra n 8, 110–111.
20 Ibid 109–110.
21 Reproduced in M Pryles and P Hanks supra n 8, 114.
22 The Judicial Power of the Commonwealth (1904) 112–113.
23 Ibid 86.
24 Ibid 115.
25 In the exercise of this jurisdiction, the Court seems to have to deal predominantly with run-of-the-mill motor accident cases such as in Pozniak v Smith (1982) 41 ALR 353 and Fielding v Doran (1985) 60 ALR 343.
26 In Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290, the Full Court held that the word “resident” ins 75(iv) did not extend to corporations, and in Watson and Godfrey v Cameron (1928) 40 CLR 446, a Full Court of five held that if there was, on each side to the litigation, a resident of the same State, who was a necessary party to the action, it was not a matter between “residents of different States”. See also Faussett v Carroll (1977) 15 WN (NSW) No 12 Marlow v Tatlow (1965) 39 AU 140 Cadet v Stevens (1967) 50 AU 361 and Morrison v Thwaites (1969) 43 ALJR 452.
27 Judiciary Act 1903 (Cth), s 44 supra n 16.
28 Johnstone v Commonwealth (1979) 143 CLR 398Weber v Aidone (1981) 36 ALR 345, (1981) 55 AUR 657;Pozniak v Smith (1982) 151 CLR 38;Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 67 ALR 545. And see 1984 amendment to the Judiciary Act 1903 (Cth), para 44(3)(a).
29 Section 75 states: In all matters—
Arising under any treaty:
Affecting consuls or other representatives of other countries:
In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party...
the High Court shall have original jurisdiction.
30 Federal Jurisdiction in Australia (2nd ed 1978) Chapter I.
31 Ibid 4.
32 (1981) 36 ALR 345, (1981) 55 ALJR 657.
33 (1982) 56 ALJR 282.
34 South Australia inWeber's case, Queensland in Guzowski's case.
35 (1979) 143 CLR 398.
36 Ibid.
37 (1982) 56 ALJR 237.
38 (1964] I 10 CLR 162.
39 High Court of Australia Act 1979 (Cth), s 14. Although s 15 of the Act permits the Court to sit elsewhere, those sessions are confined to visits to non-Eastern capital cities: see (1980) 54 AU 55 and 306.
40 (1982) 56 AUR 237, 238–239.
41 (1982) 56 ALJR 237, 239.
42 Slater v Mexican National Railroad Co (1904) 194 US 120; Western Union Telegraph Co v Brown (1914) 234 US 542; New York Central v Chisholm (1925) 268 US 29; and Loucks v Standard Oil Co of New York (1918) 120 NE 198.
43 (1951) 84 CLR 629, 643.
44 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20, 41-42, per Windeyer J.
45 Boys v Chaplin (1971] AC 356, 385–387, per Lord Wilberforce.
46 Supra n 41.
47 Supra text at n 17 and n 21.
48 (1982) 56 AUR 237, 239.
49 (1982) 41 ALR 353; (1982) 56 AUR 707.
50 Unless, of course, the defendant could have been persuaded voluntarily to enter New South Wales for the purpose of having a New South Wales writ served on him.
51 (1982) 41 ALR 353.
52 Ibid 357.
53 Id.
54 Id.
55 Ibid 358.
56 Ibid 359.
57 Ibid 360.
58 Id.
59 Ibid 365.
60 (1985) 60 ALR 342.
61 Supreme Court Act 1958 (Vic) s 79A.
62 Common Law Practice Act 1967–1981 (Qld) s 72.
63 Cf Boys v Chaplin [1971) AC 356.
64 56 AUR 237.
65 (1982) 151 CLR 38.
66 Ibid 44.
67 Ibid 47.
68 (1985) 60 ALR 343, 345.
69 Although it seems that Dawson J heard the remittal proceedings in chambers in Melbourne, had the substantive matters been heard in the High Court the Court would have sat in Canberra. High Court of Australia Act 1979 (Cth) ss 14 and 15, and (1980) 54 AU 55 and 306.
70 Supra n 68, 346.
71 See the cases cited in footnotes 47—49 above and eg Th M de Boer Beyond Lex Loci Delicti (1987) but cf Pryles “The Remission of High Court Actions to Subordinate Courts and the Law Governing Torts” (1984) 10 Syd L Rev 352. As far as Australia, at least, is concerned, it is hoped that the question of the correct choice of law in tort actions will be settled by the High Court's decision in Breavington v Godleman (on appeal from the Supreme Court of Victoria [1985) YR 851) which is expected soon. Since this article was written, the High Court has handed down its decision (1988) 80 ALR 362. Unfortunately, although all seven justices sat on the case, the result was inconclusive as to the correct choice of law rule in tort actions. Mason CJ abandoned the approach he had developed in Pozniak v Smith (1982) 151 CLR 38 and decided that the lex loci should always be applied. Wilson, Gaudron and Deane JJ relied on s 118 of the Constitution to provide that the lex loci should apply, at least on the facts before them. Brennan, Dawson and Toohey JJ adopted a double actionability approach to which Toohey J would add the flexibility exception from Chaplin v Boys [1971) AC 356.
72 As is the case at present with respect to the discount rate on damages. The Australian Capital Territory applies the common law rate of 3% while all other jurisdictions have legislated for a rate hi her than 3%.
73 (1982) 151 CLR 38.
74 See sub-s 44(2) of the Judiciary Act 1903 (Cth) inserted by the Judiciary Amendment Act (No 2) 1984, which took effect on I June 1984.
75 (1984) 53 ALR 625. On the law to be applied in such cases, see E Campbell “Suits Between the Governments of a Federation” (1968-1971) 6 Syd L Rev 309, 326–334.
76 (2A) Where a matter in which the Commonwealth is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia. —inserted by the Statute Law (Miscellaneous Provisions) Act (No I) 1984.
77 Supra n 75 628.
78 The cause of action had arisen before the 1984 amendment to the Federal Court of Australia Act 1976 (Cth), whens 5 IA was inserted into that Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 1984, and provided for the Federal Court to award interest. The latter Act also amended the Judiciary Act 1903 (Cth) by adding s 77MA which is in the same terms as s 15A of the Federal Court Act.
79 (1975) 6 ALR 433.
80 (1973) 129 CLR 65.
81 (1982) 151 CLR 38.
82 (1984) 53 ALR 625, 630.
83 Id.
84 Supra text at n 21 ff.
85 At the time of writing — May 1988. Since this article was written the High Court has handed down its decision in Oceanic Sun Line SpecialShipping Co Inc v Fay (1988) 79 ALR 9. The majority, Brennan, Deane and Gaudron JJ confounded the predictions of most commentators by holding that the doctrine of forum non conveniens has not become part of Australian law. In a strong dissenting judgment, however, Wilson and Toohey JJ approved the developments that had taken place in England and held that Spiliada [1987] I AC 460 should be followed. Consequently, it seems that a precise and authoritative statement of the principles that should be applied in dealing with an application to stay proceedings, is still required. See also, C Cook “Internationalism in Transnational Litiption Defeated” (1988) ACL: AT 19.
86 [1978] AC 795. See also Schuz, R “Controlling Forum-shopping: The Impact of MacShannon v Rockware Glass Ltd'' (1986) 35 ICLQ 374.
87 [1979] I NSWLR 663.
88 Ibid 667-668.
89 [1987] I AC 460.
90 It is expected that the High Court, when it hands down its decision in Oceanic Sun Line Special Shipping Co Inc v Fay (on appeal from the NSW Court of Appeal (1987) 8 NSWLR 242), will probably adopt the approach taken by the House of Lords and the Privy Council particularly as that approach also reflects current American jurisprudence on forum non conveniens. See, for example, EF Scoles and P Hay Conflict of Laws (1982) B
91 [I987] 1 AC 460.
92 See, for example Castanho v Brown & Root [1981] AC 557 Smith Kline & French v Bloch [1983] I WLR 730;Ranger Uranium Mines Pty Ltd v BTR Trading (Q/d)Pty Ltd (1985) 34 NTR I and Muller v Fencott (1981) 37 ALR 310.
93 “The formula is not, however, to be construed as a statute. No time should be spent in speculating as to what is meant by 'legitimate'. It, like the whole of the context, is but a guide to solving in the particular circumstances of the case the 'critical equation' between advantage to the plaintiff and disadvantage to the defendants.”Castanho v Brown & Root [1981] AC 557, 575per Lord Scarman.
94 Spiliada Maritime Corp v Cansulex Ltd [1987] I AC 460, 476 to 477.
95 For a topical discussion of the doctrine see DW Robertson “Forum Non Conveniens in America and England: 'A Rather Fantastic Fiction"' (1987) 103 LQR 398.
96 InMabo v State of Queensland and Another (1986) 64 ALR 1, the plaintiff Murray Islanders claimed certain proprietary rights in various islands which were part of Queensland. They sued Queensland and the Commonwealth in the High Court and requested remittal to the Federal Court sitting in Queensland. Queensland contended that the action should be remitted to the Supreme Court of Queensland, which would have had jurisdiction in any event, while the Commonwealth expressed no preference. The plaintiffs were under the impression that for two reasons it would be more advantageous for them to bring the action in the Federal Court than in the Supreme Court. Gibbs CJ was satisfied, however, that there would be no difference in the substantive law to be applied and that the one suggested difference between the respective powers of the two courts had not been shown to be significant. Because of the close connection of the action with Queensland and the fact that, apart from the remittal procedure, the Supreme Court was the only court other than the High Court with jurisdiction, Gibbs CJ exercised his discretion in favour of ordering remittal to the Supreme Court. Although he referred to Pozniak v Smith (1982) 41 ALR 353, (1982) 56 AUR 707, as authority for the principles to be applied to the exercise of his discretion, he did not mention the law which would have been applied had the action been heard in the High Court. It seems unlikely, however, that relevant Australian Capital Territory law would have been different from Queensland law, so no such mention was necessary. That is, there was no need to discuss the effect of s 79 of the Judiciary Act, although its operation must have been implicitly acknowledged by Gibbs CJ when he concluded that there would be no difference between the two courts in the substantive law to be applied.
97 Difficulties are unlikely to arise in State or Territory courts exercising federal jurisdiction because, whether consciously or not, they presumably apply the law of the forum, including the conflicts rules on choice of law. Thus s 79 is complied with.
98 (1987) 71 ALR 125.
99 (1950) 81 CLR 502.
100 (1921) 29 CLR 596.
101 (1984) 153 CLR 506.
102 Section 18A states: “The laws of a State or Territory with respect to the enforcement of fines ordered to be paid by offenders, . . . shall, so far as those laws are applicable and are not inconsistent with the laws of the Commonwealth, apply and be applied to persons who are convicted in thatState or Territory of offences against laws of the Commonwealth.”
103 Section 82 of the Magistrates (Summary Proceedings) Act gave a Magistrate's Court or a stipendiary magistrate power, inter alia, to allow time forpayment of any sum of money adjudged to be paid. Section 106(1) provided:
“Notwithstanding anything in any Act where a Magistrates' Court stipendiary magistrate or justice imposes a fine the following provisions shall apply:-
(b) Except in the case of a corporation the Court magistrate or justice shall order that in default of payment of the amount of the fine the offender shall be imprisoned -
where the amount of the fine exceeds $250 but does not exceed $500 — for a term of not more than six months;
where the amount of the fine exceeds $500- for a term of not more than twelve months.”
104 Gibbs CJ, Mason, Murphy, Wilson and Deane JJ.
105 (1973) 129 CLR 65.•
106 (1984) 153 CLR 506, 511, 512.
107 See, for exampleCentrepoint Freeholds Pty Ltd v TN Lucas Pty Ltd (1984) 6 FCR 133;Aussie Protection Inc & Anor v Hy-Way Sunvisors (Sales) Pty Ltd (Federal Court of Australia, 23 December 1987, unreported) andCameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46.
108 SeeHubbards Pty Ltd v Simpson (1982) 41 ALR 509Milner v Delita (1985) 61 ALR 557 andState Bank of New South Wales and Another v Commonwealth Savings Bank of Australia (1986) 67 ALR 123.
109 Section 30c of the Supreme Court Act 1935 (SA) inHubbards Pty Ltd v Simpson (1982) 41 ALR 509 ands 94 of the Supreme Court Act 1970 (NSW) inMilner v Delita (1985) 61 ALR 557 andState Bank of NSW v Commonwealth Savings Bank (1986) 67 ALR 123.
110 State Bank of NSW v Commonwealth Savings Bank (1986) 67 ALR 123, 125.
111 Simonius Vischer and Co v Holt & Thompson (1979] 2 NSWLR 322.
112 Boys v Chaplin [1971] AC 356, 381per Lord Guest.
113 Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32, 39per Dixon CJ;R v Oregan; Ex parte Oregan (1957) 97 CLR 323, 330per Webb J.
114 (1973) 129 CLR 65, 95.
115 (1977) 139 CLR 362, 376.
116 On this point see alsoCentrepoint Freeholds v Lucas (1984) 6 FCR 133, 143: In the present case, the learned trial judge found in favour of the applicant against Centrepoint both in respect of breach of the common law and of contravention of s 52(1) of the Act [52 ALR, 480]. He then turned, in the first instance, to consider damages for deceit. In the course of doing so, his Honour held [514] that the applicant's claim for interest could not be justified by reference to s 79. However, it is clear that the cause of action for deceit owed everything to the law of the State of Victoria including the common law.
117 (1984) 6 FCR 133.
118 That specific reference is explicable by the fact that there were identical provisions in both the District Court Act, 1973 (NSW) s 83A and the Local Courts (Civil Claims) Act, 1970 (NSW) s 39A.
119 (1984) 6 FCR 133.
120 (1985) 61 ALR 557 at 577 to 580.
121 (1975) 6 ALR 433.
122 (1984) 6 FCR 133.
123 SeeNeilsen v Hempston (1986) 65 ALR 302 andSchepis v Elders (1986) 70 ALR 729.
124 (1984) 6 FCR 133.
125 Id.
126 (1975) 49 ALJR 338, 340.
127 (1984) 6 FCR 133.
128 Also, for example, the County Court Act 1958 (Vic) provides in sub-s 78(6): “In any case not provided for in this Act . . . the general principles of practice and the rules observed in the Supreme Court may be adopted and applied to any action or matter with such modifications as the different constitutions of the two courts may render necessary at the discretion of the judge before whom the action or matter is depending.”
129 For example, s 83A of the District Court Act, 1973 provides: “(I) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) the Court may order that there shall be included, in the amount for which judgment is given, interest at such rate as it thinks fit . . . for the whole or any part of the period between the date when the cause of action arose and the date when judgment takes effect... “
130 (1986) 65 ALR 302.
131 Supra n 126.
132 (1986) 70 ALR 729.
133 (1984) 6 FCR 133.
134 (1986) 70 ALR 729, 730. See also Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd and Others (1987) 71 ALR 125.
135 Huddart Parker Ltd v The Ship “Mill Hill” (1950) 81 CLR 502, 507per Dixon J;Pedersen v Young (1964) 110 CLR 162, 168per Menzies J.
136 (1973) 129 CLR 65, 95, emphasis added.
137 (1985) 59 ALR 154.
138 Sub-section 40(2) states: “After the commencement of the winding up, no action or other civil proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”
139 (1980) 47 FLR 44.
140 (1973) 129 CLR 65.
141 (1980) 47 FLR 44.
142 In Grollo (1980) 47 FLR 44. Sub-s 263(2) of the Companies Act 1961 (Vic) referred to “the Court” which appears to have been taken to mean the Supreme Court of Victoria.
143 John Robertson v Ferguson Transformers (1973) 129 CLR 65, 95per Mason J.
144 (1986) 65 ALR 302.
145 (1986) 70 ALR 729.