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What is a “relevant order” under the Federal Courts (State Jurisdiction) Act 1999 (NSW) September 8, 2021

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204

Per Bell P; Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]:

  1. The order dismissing the Federal Court proceedings for want of jurisdiction was not a “relevant order” for the purposes of s 11(1). When one has regard to the context and purpose of the State Jurisdiction Act, both as explicitly stated and as is evident from a consideration of its terms as a whole including its long title, the specific context in which it was passed, namely the immediate aftermath of the decision in Wakim, and the mischief it was intended to address, it is an unavoidable conclusion that s 11(1) refers to the “want of jurisdiction” by reason of a constitutionally invalid conferral of jurisdiction as addressed in Wakim. This construction is reinforced by the explanatory memorandum and the second reading speech accompanying the Bill which led to the passage of the Act: [53].

Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, discussed.

  1. The construction of the State Jurisdiction Act on the literal reading applied by the primary judge “does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”, particularly when taken in conjunction with a broader consideration of context and extrinsic materials which shed a particularly clear light on the relevant purpose of s 11 of the State Jurisdiction Act: [58].

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied.

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered.

  1. Discussion of the modern approach to statutory construction, whereby the literal meaning of words in a statute will not always correspond to their legal meaning, and whilst the process of statutory construction must start and end with a consideration of the statutory text, elements of context, including legislative purpose and history, must be considered in the first instance and in a broad sense: [25]–[41].

Per Leeming JA; Bell P agreeing at [6]; Emmett AJA agreeing at [169]:

  1. While remedial legislation such as the State Jurisdiction Act is to be given a broad, beneficial construction, that principle is not a trump which overrides all other principles of statutory construction, and does not produce the result that purpose and context are to be disregarded when determining legal meaning. To this effect, the principle that remedial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively: [85], [97].

Commissioner of Taxation v Comber(1986) 10 FCR 88; Commonwealth v Genex Corporation Pty Ltd (1992) 276 CLR 277; [1992] HCA 65; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67; Blacker v National Australia Bank Ltd [2000] NSWSC 805; (2000) 158 FLR 142; New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50, considered.

  1. The words “purports or purported” in the definition of “State matter” in s 3 of the State Jurisdiction Act are significant. For the purposes of s 11, there will be a proceeding relating to a “State matter” if, at the time the proceeding commenced, the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer jurisdiction on a federal court: [112]–[114].
  2. Notwithstanding the prima facie breadth of the term “want of jurisdiction” in s 11 of the State Jurisdiction Act, it is to be understood as referring to an absence of subject matter, rather than personal, jurisdiction: [117]–[120].

Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 240 CLR 247; [2012] HCA 33, cited.

  1. The purpose of the State Jurisdiction Act was to address, urgently, cases where judgments and orders had been made in proceedings commenced in reliance upon the validity of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), and pending proceedings which had been commenced on that basis, in circumstances where the High Court ruled that section to be invalid in Wakim: [130]–[132].

Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; Gould v Brown (1998) 193 CLR 346; [1998] HCA 6, considered.

  1. Textual and contextual considerations point to “relevant order” in s 11(1) of the State Jurisdiction Act bearing a narrower meaning than that which was given to it by the primary judge. Textually, the substantial similarity between the definitions of “State matter” in s 3 of the State Jurisdiction Act and in the cross-vesting legislation confirms that the State Jurisdiction Act was a response to the decision in Wakim, as does the confinement of “want of jurisdiction” in s 11(1) to subject matter jurisdiction: [138].
  2. Contextually, the State Jurisdiction Act was (in the words of the then Attorney-General) a “stopgap measure”. Its purpose was to respond to the change in the law effected by the decision in Wakim. There is nothing to suggest that its purpose extended to proceedings commenced two decades after Wakim was delivered, in order to benefit all plaintiffs who commenced proceedings in federal courts without jurisdiction for any reason whatsoever: [139].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, cited.

  1. If the definition of “relevant order” in s 11(1) of the State Jurisdiction Act is given its literal meaning, its application will give rise to capricious outcomes which are, on conventional principles of statutory construction, to be avoided: [140]–[141].
  2. It is no small thing for the Parliament to create a retrospective fictional proceeding in the Supreme Court by way of statute, which must be construed in light of the purpose for which it was introduced. On such a construction of s 11(1), it is difficult to justify the operation of such an extreme measure as a safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction: [142]–[143], [145]–[146].

Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67, applied.

Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3, cited.

  1. It may not be often that a court will depart from the literal meaning of a statutory provision in order to give effect to an imputed intention and to promote the legislative purpose. The present is such a case, by reason of the countervailing considerations summarised above: [144].

Per Emmett AJA; Leeming JA agreeing at [147]:

  1. Section 11 of the State Jurisdiction Act was not intended to operate otherwise than to preserve the effect of orders made by federal courts in the purported exercise of jurisdiction invalidly conferred on them by a “relevant State Act”. The Federal Court proceedings commenced by Mr Page were instead dismissed for want of jurisdiction because that Court never had jurisdiction to award damages under the NSW Act: [168].

As to issue 2 (ground 4)

Per Bell P; Emmett AJA agreeing at [169]; Leeming JA dismissing this ground for separate reasons at [148]:

  1. Section 34 of the Commonwealth Act, as given effect by s 5 of the NSW Act, was not a “limitation law” within the meaning of s 11(1) of the State Jurisdiction Act, in view of the clearly recognised and longstanding distinction between statutory provisions barring a right of action to obtain a remedy, and those operating to extinguish a right of action if certain requirements are not met: [70].

Timeny v British Airways plc (1991) 56 SASR 287; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38; McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; [1991] HCA 56; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13; Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39; Gregory v Torquay Corporation [1911] 2 KB 556; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, considered.

As to issue 3 (grounds 1 and 2)

Per Bell P; Emmett AJA agreeing at [169]; Leeming JA not deciding:

  1. There was no inconsistency, whether direct or indirect, between s 34 of the Commonwealth Act and s 11(3)(b) of the State Jurisdiction Act as the primary judge’s order did not undermine the purpose of the former. Although the Supreme Court proceedings under s 11(2) were “new” or “fresh” proceedings, they were for the same action as was wrongly commenced in the Federal Court and therefore did not cease to have all or any relevance. This was not a case involving a discretionary extension of time within which to bring a proceeding that was otherwise out of time: [79]–[82].

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33; South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34; Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82; Telstra Corporation Ltd v Worthing (1999) 196 CLR 392; [1999] HCA 12; Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5, considered.

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