Residual Assco Group Ltd v Spalvins

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow,Hayne,Callinan JJ,Kirby J
• Judgment Date: 13 June 2000
• Neutral Citation: [2000] HCA 33,2000-0525 HCA C
• Court: High Court
• Docket Number: A5/2000
• Date: 13 June 2000

[2000] HCA 33

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

A5/2000

Residual Assco Group Limited

Plaintiff

and

Janis Gunars Spalvins & Ors

Defendants

Representation:

R J Whitington QC with M F Blue and A L McCartney for the plaintiff (instructed by Australian Securities and Investments Commission)

D F Jackson QC with A J Besanko QC and S B Lloyd for the first defendant (instructed by Thomson Playford)

D F Jackson QC with A J Besanko QC and S B Lloyd for the second and third defendants (instructed by Finlaysons)

No appearance for the fourth, fifth, sixth and seventh defendants

Interveners:

S J Gageler with M A Perry and C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)

D Graham QC, Solicitor-General for the State of Victoria with P M Tate intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with K L Kelly intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

Constitution, ss 71, 76(ii), 77(i), 109.

Family Law Act 1975 (Cth), s 31(1)(d).

Federal Court of Australia Act 1976 (Cth), s 19. Judiciary Act 1903 (Cth), s 39B(1A)(c).

Federal Courts (State Jurisdiction) Act 1999 (SA), s 11. Rules of the Supreme Court of South Australia, r 123A.05.

Residual Assco Group Limited v Spalvins

Constitutional law (Cth) — State law providing for order that a proceeding commenced in a federal court be treated as a proceeding in the Supreme Court — Whether State law invalid by reason of interference with the procedures of a federal court after order by that court that it had no jurisdiction — State law not invalid.

High Court and federal judiciary — Federal Court and Family Court — Original jurisdiction conferred under cross-vesting legislation of the Commonwealth held to be invalid in a previous decision — Original jurisdiction also conferred under other laws of the Commonwealth — Jurisdiction to make an order staying for want of jurisdiction a matter commenced under invalid cross-vesting legislation — Whether exercising jurisdiction conferred under invalid cross-vesting legislation or under other laws of the Commonwealth in making the order — Whether issue arises as to whether an order made under invalid legislation is a nullity or voidable.

Procedure — Courts — Supreme Courts of the States and federal courts — State law provided for Supreme Court to make an order that a proceeding commenced in a federal court in respect of which that federal court had made an order that it had no jurisdiction be treated as a proceeding in the Supreme Court — Effect of State law.

ORDER

1. The questions in the case stated are answered as follows:

1. Are s 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) and rule 123A.05 of the Rules of the Supreme Court of South Australia invalid?

Answer: No.

2. Are any one or more (and, if so, which) of ss 6, 7, 8 and 10 of the Federal Courts (State Jurisdiction) Act 1999 (SA) invalid?

Answer: Unnecessary to answer.

3. If any of ss 6, 7, 8, 10 or 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) be invalid, as a consequence thereof, is any other provision thereof (and, if so, which) invalid?

Answer: Unnecessary to answer.

2. The first, second and third defendants must pay the plaintiff's costs of the case stated.

3. Any other questions of costs in this Court are reserved for the consideration of the single Justice making orders consequential upon the answers to the questions reserved.

1 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The issue in this case stated arises out of legislation introduced by the State of South Australia and other States to remedy some of the effects of the decision of this Court in Re Wakim; Ex parte McNally1. In Re Wakim, this Court held that neither the federal Parliament nor the legislature of a State, alone or in combination, could vest State judicial power in a federal court. The critical issue in the case stated is whether s 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) (‘the State Act’) and r 123A.05 of the Rules of the Supreme Court of South Australia are invalid because they are a direct interference with the procedures and authority of the Federal Court of Australia.

2 On 21 September 1999, in respect of a proceeding commenced in the South Australian District Registry of the Federal Court, a Judge of that Court (O'Loughlin J) ordered that the proceeding be stayed for want of jurisdiction. The proceeding related to a matter in respect of which the Corporations (South Australia) Act 1990 (SA) had purported to confer jurisdiction on the Federal Court. Application was then made to the Supreme Court of South Australia under s 11 of the State Act and pursuant to r 123A.05. An order for removal into this Court from the Supreme Court was made under s 40 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) and the case stated was formulated.

3 Section 11 of the State Act provides:

‘(1) In this section —

“ limitation law” means —

(a) the Limitation of Actions Act 1936;

(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;

“ 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.

(2) 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.

(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 taken 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.

(4) The Supreme Court may make such ancillary orders in relation to an order under subsection (2) as it considers necessary for the purposes of the proceeding being treated as, becoming and being recorded as, a proceeding in the Supreme Court.’

4 Section 3 of the State Act defines some of the terms in s 11:

‘“ federal court” means the Federal Court of Australia or the Family Court of Australia; … “ proceeding” includes an initiating application;

…

“ relevant State Act” means any of the following Acts:

…

(d) Corporations (South Australia) Act 1990; …

(f) Jurisdiction of Courts (Cross-vesting) Act 1987;

…

“ 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.’

5 Rule 123A.05 provides:

‘(1) An applicant for an order under Section 11(2) of the [State] Act (“the order”) shall commence proceedings for the order by summons, joining as defendants all other parties to the proceeding in which the relevant order was made (“the relevant proceedings”).

(2) Where the order is made:

• (a) subject to any order of the Court:

  • (i) the Registrar or like Officer of the Court in which the relevant proceedings were brought will be requested to send the record of the proceedings to the Court; and

  • (ii) the Court shall proceed as if:

    • (A) the relevant proceedings had been originally commenced in the Court;

    • (B) the same steps had been taken in the Court as have been taken in any other Court or Courts in which the relevant proceedings were for the time being pending; and

    • (C) any order made by any other Court or Courts in which the relevant proceedings were for the time being pending had been made by the Court;

• (b) the plaintiff shall, within 28 days of the order being made, apply to the Court for directions pursuant to Rule 55.’

Rule 123A.02 defines ‘relevant order’ to have the same meaning as in the State Act for the purposes of r 123A, unless the contrary intention appears.

Are ‘relevant orders’ nullities?

6 Lurking in the background of the present case are important...