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Topic Two

TOPIC #2
THE VICTORIAN COURT HIERARCHY

1. Introduction

Australia, as a federation, has several distinct but often overlapping jurisdictions, each with its own court structure.
There is a federal jurisdiction. It extends, within the boundaries set by the Constitution, throughout every State and
Territory of the Commonwealth. There are also State and Territory jurisdictions which apply so far as the State
legislatures legitimately permit. In each State and Territory there are thus two sets of Courts:

- Federal Courts; and


- State Courts.

The State and Territory Courts may be vested with federal powers under particular federal enactments, but
otherwise they and they alone exercise the judicial powers of the State or Territory concerned. Federal Courts,
regardless of whether they or their registries are located in any particular State or Territory, can only exercise any
federal powers which have been vested in them by the Commonwealth.

Territorial judicial powers can be vested in federal courts, and federal powers can be vested in State or Territory
Courts but State judicial powers cannot be vested in federal courts unless there is a Constitutional amendment or
States cede relevant powers to the Commonwealth. This complex position will be considered further under cross-
vesting legislation.

2. Objectives

At the completion of this topic, you should be aware and have the understanding of:

- jurisdiction and the types of jurisdiction;


- whether a particular court would have jurisdiction of a particular dispute between the parties;
- the court hierarchy and the limits to its jurisdiction;
- the cross vesting legislation.

3. The jurisdiction of the courts

Before a court can determine a dispute, it must have jurisdiction, or the power to hear and decide the dispute.
A court must have jurisdiction over both the defendant and the subject matter of the dispute. The subject
matter of the dispute must be one which may be ordinarily determined by that court. In other words, the court
must have the power to hear a dispute of that kind.

Sometimes subject matter jurisdiction may be limited by a monetary amount in dispute. At other times, the
jurisdiction of a Court may extend only to certain types of disputes, such as the Family Court which has jurisdiction
over matters relating to marriage, divorce, custody and matrimonial property disputes.

Further, it is also necessary to show that the Court has jurisdiction over the defendant. For instance, the Supreme
Court of Victoria would not have jurisdiction or power to hear a dispute between two citizens in the City of Milan
in Italy who had no connection with the State of Victoria.

(a) Subject matter jurisdiction: The High Court

Australian Constitution
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Section 71: Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such
other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a
Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Section 75: Original jurisdiction of High Court

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;

the High Court shall have original jurisdiction.

Section 76: Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) arising under this Constitution, or involving its interpretation;


(ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of different States.

Section 77: Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

(i) defining the jurisdiction of any federal court other than the High Court;
(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the
courts of the States;
(iii) investing any court of a State with federal jurisdiction.

Judiciary Act 1903 (Cth)

Section 38: Matters in which jurisdiction of High Court exclusive

Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the
following matters:

(a) matters arising directly under any treaty;


(b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or
being sued on behalf of another State;
(c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on
behalf of a State;
(d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of
the Commonwealth;
(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

Note: Under the Jurisdiction of Courts (Cross-vesting) Act 1987 , State Supreme Courts are, with some exceptions and limitations, invested with
the same civil jurisdiction as the Federal Court has, including jurisdiction under section 39B of this Act.

Section 39B: Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with
respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of
the Commonwealth.
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(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or
any other criminal matter.

Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

Jurisdiction for certain writs that relate to criminal prosecutions etc.

(1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an
officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory:
(a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of
mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and
(b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has
conferred on it, jurisdiction with respect to any such matter.
(1C) Subject to subsection (1D), at any time when:
(a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory;
or
(b) an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was
the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of
the Commonwealth in relation to a related criminal justice process decision;
(d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has
conferred on it, jurisdiction with respect to any such matter.
(1D) Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an
officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution
for an offence against a law of the Commonwealth, or of a State or a Territory.
(1E) Where subsection (1D) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that
subsection, and the court may grant such a stay if the court determines that:
(a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and
(b) a stay of proceedings will not substantially prejudice the person.

Jurisdiction for certain writs that relate to civil proceedings

(1EA) If:
(a) a civil proceeding is before the Family Court of Australia, the Federal Circuit Court of Australia or a court of a State or Territory;
or
(b) an appeal arising out of such a proceeding is before the Family Court of Australia or a court of a State or Territory;

the following apply:

(c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person who is or was a party to
the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to
a related civil proceeding decision;
(d) the following court is invested with, or has conferred on it, jurisdiction with respect to any such matter:
(i) if the civil proceeding or appeal is before the Family Court of Australia--that court; or
(ii) if the civil proceeding is before the Federal Circuit Court of Australia--that court; or
(iii) if the civil proceeding or appeal is before a court of a State or Territory--the Supreme Court of the State or Territory.

Jurisdictional rules to apply despite any other law

(1F) Subsections (1B), (1C), (1D), (1E) and (1EA) have effect despite anything in any other law. In particular:
(a) neither the Jurisdiction of Courts (Cross-vesting) Act 1987, nor any other law, has the effect of giving the
Federal Court of Australia jurisdiction contrary to subsection (1B), (1C) or (1EA); and
(b) neither section 9 of the Administrative Decisions (Judicial Review) Act 1977 , nor any other law, has the effect of removing from
the Supreme Court of a State or Territory the jurisdiction given to that Court by subsection (1B), (1C) or (1EA).
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References to officer or officers of the Commonwealth

(2) The reference in subsection (1), (1B), (1C) or (1D) to an officer or officers of the Commonwealth does not include a reference to a
Judge or Judges of the Family Court of Australia.

Definitions

(3) In this section:

"civil proceeding" has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

"related civil proceeding decision" , in relation to a civil proceeding, means:


(a) a decision of the Attorney-General to give:
(i) notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to
the proceeding; or
(ii) a certificate under section 38F or 38H of that Act in relation to the proceeding; or
(b) a decision of the Minister appointed by the Attorney-General under section 6A of that Act to give:
(i) notice under section 6A of that Act in relation to the proceeding; or
(ii) a certificate under section 38F or 38H of that Act in relation to the proceeding.

"related criminal justice process decision" , in relation to an offence, means:


(a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:
(i) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and
(ii) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and
(iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and
(iv) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses;
and
(v) a decision in connection with an appeal arising out of the prosecution; or
(b) a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal
and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

Section 38: Remittal of matters by High Court to other courts

(1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the
High Court or not, or any part of such a matter, 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 court 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 or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) 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 or any court of a State or Territory.

(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of 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.

(3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and
(b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as
directed by that court.
(4) The High Court may remit a matter, or any part of a matter, under this section without an oral hearing.

(b) Subject matter jurisdiction: The Federal Court

Federal Court of Australia Act 1976 (Cth)

Section 19: Original Jurisdiction

(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or
tribunals other than courts.
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Judiciary Act 1903 (Cth)

Section 39: Federal Jurisdiction of State Courts in other matters

(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the
jurisdiction of the several Courts of the States, except as provided in this section.

(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or
otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred
upon it, except as provided in section 38, and subject to the following conditions and restrictions:

(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether
by special leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits appeal

(c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the
law of the State may prohibit any appeal from such Court or Judge.

Section 39A: Federal jurisdiction invested in State Courts by other provisions

(1) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether the investing occurred or occurs before or after the
commencement of this section, including federal jurisdiction invested by a provision of this Act other than the last preceding section:

(a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2) of the last preceding section; and
(b) shall be taken to be invested subject to paragraph 39(2)(c) (whether or not the jurisdiction is expressed to be invested subject to that paragraph),
so far as it can apply and is not inconsistent with a provision made by or under the Act by or under which the jurisdiction is invested;
in addition to any other conditions or restrictions subject to which the jurisdiction is expressed to be invested.
(2) Nothing in this section or the last preceding section, or in any Act passed before the commencement of this section, shall be taken to prejudice the
application of any of sections 72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences.

(c) The 'accrued jurisdiction of the Federal Court

The Federal Court has an accrued jurisdiction which enables that court to determine claims which arise under
common law or state legislation but only if they are part of the same matter as the claim within the Federal Courts
primary jurisdiction;

Federal Court Act 1976 (Cth)

Section 32: Jurisdiction in associated matters

Associated matters--civil proceedings

(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are
associated with matters (the core matters ) in which the jurisdiction of the Court is invoked.

(2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a
matter that is associated with a matter (the core matter ) in respect of which an appeal from that judgment, or another judgment of that court, is brought.

(3) Subsections (1) and (2) do not apply in relation to a core matter that is an indictable offence matter.

Associated matters--indictable offences

(4) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters (the related matters) that:

(a) arise under any laws made by the Parliament; and


(b) are not otherwise within the Court's jurisdiction; and
(c) relate to one or more indictable offences;

that are associated with an indictable offence matter in which the jurisdiction of the Court is invoked.

(5) The jurisdiction conferred by subsection (4) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a
related matter that is associated with an indictable offence matter in respect of which an appeal from that judgment, or another judgment of that court, is
brought.

Indictable offence matters


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(6) For the purposes of this Act, a matter is an indictable offence matter if a proceeding in relation to the matter would be an indictable
primary proceeding.

In Fencott v Muller (1983) 152 CLR 570 at 608 the High Court said:
in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim
joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises
before evidence is adduced and often before the pleadings are complete.

In re Wakim; Ex parte McNally (1999) 198 CLR 511, the High Court gave some definitions which may constitute a
matter:

- There is but a single matter if different claims arise out of common transactions and facts or a common
substratum of facts notwithstanding that the facts upon which the claims depend do not wholly coincide;
- There is but one matter where different claims are so related that the determination of one is essential to
the determination of the other (e.g., in the case of third party proceedings or where there are alternative
claims for the same damage and the determination of one will either render the other otiose or necessitate
its determination;
- Claims which are completely disparate or completely separate and distinct or distinct and unrelated are
not part of the same matter.

The Court went on to state that, if proceedings were tried in different courts, there would be conflicting findings
made on one or more issues common to the two proceedings will indicate that there is a single matter.

By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they
could be said to constitute a single matter.

In this case of Re Wakim, the High Court held that there was a single matter before the court: there was a single
claim for damages pursued against each of the defendants. Judgment and recovery against one will diminish the
amount that may be recovered against the others.

(d) Subject matter jurisdiction: The Supreme Court

Constitution Act 1975 (Vic)

Section 85: Powers and jurisdiction of the Court

(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever
and shall be the superior Court of Victoria with unlimited jurisdiction.

(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the
commencement of the Supreme Court Act 1986.

(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.

(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary
this section unless
(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal,
alter or vary this section; and
(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or
a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this
section; and
(c) the statement is so made
(i) during the member's second reading speech; or
(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or
(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.
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(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal,
body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of subsection (5) are satisfied.

(7) A provision of an Act which creates, or purports to create, a summary offence is not to be taken, on that account, to repeal, alter or vary this section.

(8) A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which
augments any such jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in
subsection (5).

(e) Territorial jurisdiction: The Supreme Court

The Court must have jurisdiction over the defendant. Thus, whilst the Supreme Court may have subject matter
jurisdiction, it is also necessary that it have in personam jurisdiction over the defendant. For instance, the
Supreme Court of Victoria would not have jurisdiction or power to hear a dispute between two parties in Milan,
Italy who had no connection with the State of Victoria.

Laurie v Carroll (1958) 98 CLR 310

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:
it does not matter why, unless he has been enticed there fraudulently for the purpose
it does not whether his is a foreigner or a subject of the Crown
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

What do you think is the impact of sections 12 and 15 of the Service and Execution of Process Act 1992 (Cth)?

Is it possible for a defendant to voluntarily submit to the jurisdiction of the Supreme Court?

4. Cross vesting of jurisdiction

Despite the federal court having accrued jurisdiction to hear some common law matters and despite with State
courts having invested in them federal jurisdiction, there was still much argument as to which court had subject
matter jurisdiction to hear and determine a case.

Furthermore, prior to the commencement of the Service and Execution of Process Act 1992 (Cth), there was also
quite a clear division of territorial jurisdiction between the State Courts.
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As a result, jurisdictional problems frequently arose when commercial transactions in particular, transcended the
borders of one or more States.

A typical scenario which was likely to raise all these issues is as follows:

A plaintiff wishes to institute proceedings against a defendant for breach of contract (a State matter). In its defence, the
defendant wishes to allege that the plaintiff has breached s18 of the Australian Consumer Law (which is in a schedule to the
Competition and Consumer Act 2010 (Cth) (a Federal matter). Furthermore, in which court would such an action be brought if
there were two or more defendants in different states?

Much legal argument was to be had in determining the correct court to hear and determine a case resulting in
inefficiencies, uncertainties, delays and unnecessary expense.

Difficulties occasioned by lack of State court jurisdiction in trade practices matters were to some extent overcome by
s138B of the Competition and Consumer Act 2010 (Cth) which invests State Courts with federal jurisdiction to hear
and determine such matters.

Colbran 161-167:

- What were the broad aims of the original cross-vesting schemes? It was the desire to overcome some of the
difficulties of overlapping and competing jurisdictions inherent in a federal system, and to ensure that one
superior court could not give complete relief, that in 1987 caused state and federal legislatures to pass a
number of Act- collectively referred to as the cross-vesting scheme.
- How did these aims overcome the problems referred to above? Twas not intended to make any general
change in the distribution of business among the courts, it was necessary to also provide a mechanism to
ensure that people continued to bring their actions in the most appropriate courts. Accordingly, the scheme
has two basic components:
o (1) The investment or conferral, as the case requires, of the original and appellate jurisdiction of
each of the participating courts in or on each of the other participating courts (although with some
exclusions). The participating courts are the Federal Court, the Family Court, the Supreme Courts of
each of the states and territories, and the Family Court of WA. Scheme does not include magistrates
courts and district and county courts, although certain matters can be remitted to those courts
o (2) A mechanism for the transfer of proceedings to the best suited court
- These two components were intended to ensure that, within the ambit of the scheme, a proceeding could
not fail because of a lack of jurisdiction, but that jurisdictional balance would be maintained between courts
through the appropriate exercise by the courts of the power to transfer proceedings.
- Scheme took effect from 1 July 1988. Comprises of corresponding state and territorial legislation:
o Jurisdiction of Courts (Cross-vesting) Act 1987 for each of the states (the State Acts)
o Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
o Jurisdiction of Courts (Miscellaneous Amendments) Act 187 (Cth)
o Jurisdiction of Courts (Cross-vesting) Act 1987 (NT) (and now includes the Jurisdiction of Courts
(Cross-vesting) Act 1993 (ACT)) (the Territory Acts).
- The state and territory Acts are in very similar terms, but they differ in some respects from the
Commonwealth Act.
- Which part of the cross-vesting scheme was declared to be constitutionally invalid by the High Court in Re
Wakim (1999) 198 CLR 511? In Re Wakin; Ex parte McNally (1999) 198 CLR 511; (1999) 163 ALR 270, the High
Court held that those provisions of the cross-vesting scheme which purported to confer state jurisdiction on
federal courts were invalid.
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- Earlier decision in Gould v Brown (1998) 193 CLR 346; 151 ALR 395, High Court had been evenly divided on
the issue and had therefore affirmed the decision of the Full Court of the Federal Court in BP Australia Ltd v
Amann Aviation Pty Ltd (1996) 137 ALR 447, which had upheld the validity of the cross-vesting scheme.
- High Courts finding of invalidity in Re Wakim was held to flow from Ch III of the constitution. Under s 77(i) of
the Constitution, the Commonwealth Parliament may make laws defining the jurisdiction of a federal court,
but only with respect to those (federal) matters set out in ss 75 and 76.
- High Court held that s 77(i) was an exhaustive statement of the jurisdiction which the Commonwealth
Parliament could confer on a federal court, and further that no entity other than the Commonwealth
Parliament had power to confer jurisdiction on a federal court
- Accordingly, state parliaments could not confer any jurisdiction on a federal court. The High Court further
held that there was no power in the CP to authorise a federal court to exercise jurisdiction which the CP
could not itself confer
- Which part of the cross-vesting scheme was left intact? Re Wakim only invalidated those provisions which
purported to confer state jurisdiction on federal courts. So provisions of the Jurisdiction of Courts (Cross-
Vesting) Act 1987 of each of the states which were affected were s 4(1) and (2). In each state these
provisions have since been omitted by amending legislation.
- In respect of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the affected provision was s 9(2).
Those provisions of the scheme which confer states and territories remain operative.
- Similarly the provisions which facilitate the transfer of proceedings between courts are valid, but it will now
only be possible to transfer proceedings between courts if both the transferring court and the court to which
it is sought to transfer the proceedings have jurisdiction. Amendments have been made to the transfer
provisions in each state to accurately reflect their circumstance.
- The ACT and NT have legs corresponding with that of states, and both Cth and the state and territory Acts
treat them as states: s 3. The decision in Re Wakim however, concerns cross-vesting of state not territorial,
jurisdiction on a federal court. As the conferring of territorial jurisdiction on a federal court was not in issue,
the decision does not invalidate s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) or the
Jurisdiction of Courts (Cross-vesting) Act (NT).
- S 3(1) of each state Act defines state matter; as extending to any matter in which the Supreme Court has
jurisdiction other than by reason of a law of the Cth or of another state, or any matter which is removed to
the Supreme Court from an inferior court for the purpose of transfer under the scheme. This means that a
state matter is any matter that would fall within the ordinary juris of a state court regardless of the cross-
vesting scheme.
- What does the cross-vesting scheme now achieve (in broad terms)? 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 (with significance exceptions to be discussed), but there is some doubt as
to whether it extends, in effect, to the territorial jurisdiction
- David Syme & Co Ltd v Grey (1992) 38 FCR 303
o Respondent issued writ against appellant out of the Supreme Court of the ACT. Writ claimed in respect of defamatory material concerning
the plaintiff published in the Australian Capital Territory and throughout Australia. Writ was indorsed to be served out of the ACT and in
Vic
o Appellant was never present, nor did it carry on any business, in the ACT. Appellant entered no appearance, but gave notice of motion to
stay the proceedings as being appropriate for the granting of liberty to proceed under the Service and Execution of Process Act 1901 (Cth)
s 11(1) of that Act authorised service out of the jurisdiction if there was sufficient nexus with the jurisdiction (as set out in the s), but it was
necessary to obtain liberty to proceed if no appearance was entered.
o Respondent obtained order from Supreme Court of ACT giving it liberty to proceed and appellant appealed, by leave, to the Full Court.
Appeal allowed.
o Held that in relation to claim for damages based upon publication outside ACT, there clearly was not a sufficient nexus with ACT for
granting leave under s 11(1). Twas argued that Supreme Court of ACT had cross-vested jurisdiction which could be exercised without
regard to nexus requirements as to service contained in the Service and Execution of Process Act 1901 (Cth), or the relevant Rules of Court
relating to service out of the territory. Full Court of Federal Court rejected the contention
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o Held that cross-vesting legislation should be construed as affecting only the subject matter jurisdiction. Did not vest the personal
jurisdiction of the participating courts, leaving service of process to be dealt with under the otherwise applicable rules.
o K Mason and J Crawford (The Cross-Vesting Scheme (1988) 62 ALJ 328 at 335-6) had earlier argued for the position accepted in David
Syme & Co Ltd v Grey, namely that the scheme for cross-vesting of jurisdiction did not extend to vest the personal jurisdiction of the
participating court, leaving personal jurisdiction (include service of process) to be dealt with under the otherwise applicable rules.
- In broad terms, when can a case be transferred to a more appropriate court?
o If the scheme merely conferred jurisdiction and contained no mechanisms to ensure that
proceedings were brought in the most appropriate courts, it could have resulted in a significant
change in the distribution of business among the courts and allowed parties to conduct proceedings
in courts which were clearly inappropriate forums for the particular disputes- not a desirable result.
o To ensure that the scheme does not foster forum shopping and that, so far as possible the
jurisdictional balance between various courts is maintained, the scheme contains provision for the
transfer of proceedings in certain cases to a more appropriate court. Key provision for the transfer of
proceedings is s 5 of each Jurisdiction of Court (Cross-vesting) Acts, which requires transfer of a
pending proceeding (where specified conditions are met) between the various superior courts.

BHP Billiton Ltd v Schultz (2004) 221 CLR 400 (Colbran 172-176):

- Background facts
o The first respondent suffered from asbestos such related diseases and sued his employer the Defendant [BHP] for negligence and breach
of statutory duty in the Dust Diseases Tribunal of NSW. Worked for appellant in SA.
o The Appellant applied pursuant to s 5 of the Jurisdiction of Courts (cross Vesting) Act 1987 to remove the proceedings form the NSW Dust
Diseases Tribunal to the Supreme Court of NSW, and transfer them to the Supreme Court of South Australia. The Supreme Court refused
the application BHP appealed to the High Court.
o First respondent was a resident of SA
o Appellant incorporate in Vic and carries business both in SA and NSW
o Second respondent incorporated in UK and registered as foreign corporation in NSW
o Third and fourth incorporated in ACT
o Fifth in NSW
- Judgement
Gleeson CJ, McHugh and Heydon JJ:
o The criterion for transfer established by section 5 is that it is in the 'interests of justice' that the proceedings be determined in the other
court. This has a broad definition, meaning, the other court must be more appropriate.
o Choosing an appropriate court usually involves looking at considerations of cost, expense and convenience.
o In the present matter, it is true that the Tribunal's capacity to deal expeditiously with such cases is relevant, especially when considering
the condition of many sufferers from dust diseases.
However, it should be noted that unlike other cases, the Plaintiff in this case is not going to die very soon, which means its
maybe not as big a consideration as in other cases.
o The Supreme Court based its decision (not to transfer) on two main considerations:
(1) That a plaintiff's choice of forum is not to be lightly overridden - ie, that the plaintiff's choice is privileged and should only be
displaced if there is a substantial reason for it.
This is a concept which is still influential in most courts in Australia, but is out of place in a decision regarding s 5 of
the cross-vesting scheme. There is no 'special consideration' to which court the plaintiff chooses.
(2) That the "unusual advantages" conferred by s 11 of the Cross-Vesting Act on the Plaintiff were to be kept open.
When there is an advantage to the plaintiff which is also an equal disadvantage to the defendant, it is doesn't carry
any weight in the interest of justice, since it cancels itself out.
o In addition, while the Supreme Court was right to attach importance to the procedural and evidentiary advantages offered to all parties
through the use of the Tribunal, it overlooked the fact that the Defendant undertook to give the Plaintiff the benefit of those provisions if
the proceedings were transferred.
o All in all, the factors were not equally balanced in this case - "the combination of the importance that was attached to the first
respondent's [Plaintiff] choice of forum, and the treatment of s 11A as a factor relevant to the interests of justice, involved error in the
application of s 5 of the Cross-vesting Act".
o Accordingly, the appeal is accepted and the matter is remitted back to the NSWSC.
- The other 4 members of the High Court also allowed the appeal but decided that the proceedings should not be remitted to the NSW Supreme Court,
but transferred to the SA Supreme Court as requested, being that SA law governed the claim.
- Each judge concluded that the interests of justice dictated that the Supreme Court of South Australia was the more appropriate court in the
circumstances and that the proceedings should be removed unto the Supreme Court of New South Wales and then be transferred to the Supreme
Court of South Australia.
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- When did the court say a case can be transferred? The criterion for transfer established by s 5 Supreme
Court of NSW Cross-vesting Act is that it is in the interests of justice that the proceedings be determined in
the Supreme Court of SA.
- Has a court any discretion in the matter? It has been recognised by courts applying the Cross-vesting Act
that, although an app for transfer under s 5 will often involve evidence and debate about matters of the
same kind as arise when a court is asked to grant a stay of proceedings on the ground of forum non conveins,
there are diffs between the two kinds of application.
- What did the court say about the forum non conveniens test? Has it any application under the cross-
vesting scheme? The ground of forum non conveiniens where the court is satisfied that there is some other
available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e
in which the case may be tried more suitable for the interests of all the parties and the ends of justice.
- Can any guiding principle(s) be gleaned from this case as to when a case may be transferred in the interest
of justice?

The applicant for transfer carries at least a persuasive onus (James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR
357 at [100]) but the plaintiffs choice of tribunal and the reasons for it are not to be taken into account: BHP Billiton
Ltd v Schultz (2004) 221 CLR 400. Other relevant considerations include:

- the place or places where the parties and/or witnesses reside or carry on business;
- the location of the subject matter of the dispute;
- the importance of local knowledge to the resolution of the issues;
- the law governing the relevant transaction, especially if the matter involves the construction of State
legislation: Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233;
- the procedures available in the different courts;
- the likely hearing dates in the different courts;
- whether it is sought to transfer the proceedings to a specialised court, for example, the Family
Court: Lambert v Dean (1989) 13 Fam LR 285;
- an exclusive jurisdiction clause nominating the courts of a particular State for the resolution of
disputes: Wests Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (unrep,
6/8/97, NSWSC).

5. Victoria: a typical state judicial hierarchy

It is appropriate now to examine Victorias judicial and quasi-judicial hierarchy which is generally typical of those
found in the other States and Territories. Civil jurisdiction in Victoria is exercised by the Magistrates Court, County
Court and Supreme Court. As well, there are tribunals that exercise administrative powers determining significant
civil rights and/or quasi-judicial powers.

(a) The Magistrates Court

The Magistrates Court Act 1989 (Vic) established a Magistrates Court of Victoria. The civil jurisdiction of the
Magistrates Court has recently been increased to $100,000 in respect of any civil proceeding for damages, debt, or
liquidated demand or equivalent equitable relief (having risen from the previous limit of $40,000). In addition it
may hear matters concerning greater monetary limits where specific legislation vests jurisdiction in the court to
determine them, for example with the consent of the parties or in respect of occupational health and safety.

All matters of civil procedure are set out in the Magistrates Court General Civil Procedure Rules2010 (which came
into operation on the 1st of January 2011, the rules of which assimilate many of the Supreme Court Rules). The sitting
court is constituted by a single magistrate, unless an Act or the rules provide for a court to be constituted by a
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registrar. Where the Magistrates Court exercises federal jurisdiction the court consists of a magistrate sitting alone.
Magistrates are appointed from barristers and solicitors who have no less than five years experience.

In 2006, the Victorian Parliament passed the Courts Legislation (Neighbourhood Justice Centre) Act 2006 (Vic), which
established a Neighbourhood Justice Division of the Magistrates Court. The idea of this division is to deal with
both small civil and family violence criminal matters on an informal local level. This Division is constituted by a
magistrate assigned to that Division and is to
exercise its jurisdiction with as little formality and technicality and as much expedition, as . . . proper consideration of the matters before
the Court permit. (Magistrates Court Act 1989 s 4 M (6).) See further, Magistrates Court Act 1989, ss4M to 4Q.

Jurisdiction

The extent of the Magistrates Court jurisdiction is prescribed in s100 of the Magistrates Court Act. With the
increase in jurisdictional limits, the Magistrates Court is poised to become even more significant in the Victorian
judicial system.

Appeals

Under s109 of the Magistrates Court Act, the only avenue for appeals from an order made in civil proceedings is to
the Supreme Court, and such an appeal is confined to a question of law.

VCAT

In 1998, the Victorian Parliament established the Victorian Civil and Administrative Tribunal (VCAT) which
consolidated numerous specialist tribunals in a number of different areas of law. See Victorian Civil and
Administrative Tribunal Act 1998. VCAT hears a broad range of matters, including:

- Anti-discrimination
- Purchase and supply of goods
- Domestic building works
- Guardianship and administration
- Legal professional services
- Consumer credit
- Planning and land valuation
- Retail and residential tenancy
- Licensing for businesses
- State taxation
- Transport Accident Commission and Freedom of Information decisions
- Small claims disputes
- Property division claims

VCAT has three divisions, Administrative Division, Civil Division and Human Rights division. Each of these Divisions
maintains separate lists dealing with particular subject-matters of disputes. Thus, the process can vary between
the lists. VCAT maintains its own rules and regulations: see Victorian Civil and Administrative Tribunal Rules 2008.
At the initiation of a dispute before VCAT, parties may be directed to a mediation, compulsory conference or
directions hearing in an attempt to settle the matter, although many disputes proceed to hearing. After hearing, a
member of VCAT may give an oral decision or writes a decision after hearing.

Appeals against decisions of VCAT can be made to the Supreme Court but on questions of law only.

Section 148: Appeals from the Tribunal


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(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding
(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court
of Appeal with leave of the Court of Appeal; or
(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

(2) An application for leave to appeal must be made


(a) no later than 28 days after the day of the order of the Tribunal; and
(b) in accordance with the rules of the Supreme Court.

(3) If leave to appeal to the Trial Division of the Supreme Court is granted, the appeal must be instituted
(a) no later than 14 days after the day on which leave is granted; and
(b) in accordance with the rules of the Supreme Court.

(4) If the Tribunal gives oral reasons for making an order and a party then requests it to give written reasons under section 117, the day on which the
written reasons are given to the party is deemed to be the day of the order for the purposes of subsection (2).

(5) The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under this section.

(6) A party that institutes an appeal must notify the principal registrar.

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal
(a) an order affirming, varying or setting aside the order of the Tribunal;
(b) an order that the Tribunal could have made in the proceeding;
(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance
with the directions of the court;
(d) any other order the court thinks appropriate.

(8) If the court makes an order under subsection (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the
same members who made the original order.

(9) A party to a proceeding under a credit enactment that involves a claim not exceeding $3000 cannot apply for leave to appeal under this section unless
that party agrees to indemnify the reasonable legal costs of the other parties in the proceeding.

(10) For the purposes of subsection (9)

"credit enactment" means


(b) Credit Act 1984;
(c) Consumer Credit (Victoria) Code (except Part 4);
(d) section 45 of the Motor Car Traders Act 1986.

(b) The County Court

The recent Courts Legislation (Jurisdiction) Act 2006 (Vic) gives the County Court unlimited civil jurisdiction by
removing its previous monetary jurisdiction limit. Thus, the County Court and Supreme Court now share concurrent
civil jurisdiction as of 2007. Importantly, the new jurisdictional change applies only to actions instituted after the
amending act came into effect.

Constitution

Section 4 (1A) of the County Court Act provides that the court consists of the Judges as are from time to time
appointed, the associated judges, judicial registrars and the Registrar. The court is presided over by the Chief Judge
of the County Court.

Jurisdiction

The County Court is a court of record (s 35 (2) of the County Court Act). This means it has power to fine or imprison
for abuse of its own procedure.

Pursuant to s 36, the court has the power to hear and determine every proceeding in respect of which jurisdiction is
conferred on it notwithstanding that part of the cause of action arose outside Victoria, provided that a material part
of the action arose within Victoria. It also has power to hear and determine every such proceeding notwithstanding
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that the whole cause of action arose outside Victoria, provided that the defendant resided within Victoria at the time
of the service of the originating process upon such defendant.

Section 37 (1) of the County Court Act provides that the court shall have jurisdiction to hear and determine:

- All applications, claims, disputes and civil proceedings regardless of the type of relief sought or the subject
matter as are not by this or any other Act excluded from its jurisdiction
- All civil proceedings against municipal councils in respect of loss or injury sustained by persons or property
by reason of accidents, upon or while using any highway, street, road, bridge, ferry or jetty or upon or in or
while using any paths or any land or building under the control of a municipal council.
- All other civil proceedings in respect of which jurisdiction is given to the court by this or any other Act.

Prior to the Courts Amendment Act 1986 (Vic) any dispute involving land or property or an interest in the same had
to be heard and determined by the Supreme Court. However, as a result of this particular Act such disputes can now
be heard by the County Court.

Procedure in the County Court

The procedure in actions before the County Court is quite similar to that applicable to the Supreme Court. In fact the
Civil Rules are virtually identical. Procedures specific to the County Court are found in the County Court Civil
Procedure Rules 2008 (Vic).

(c) The Supreme Court

The Supreme Courts jurisdiction is unlimited. This is provided by s85 of the Constitution Act 1975. The court is also
vested with federal jurisdiction under various Federal Acts, for example, the Competition and Consumer Act 2010
(Cth ) s138B.

(i) When jurisdiction exists

- Jurisdiction over the person:


The court has jurisdiction of the defendants person, or in personam jurisdiction, where there has been due
service of the originating process on the defendant. As previously seen, the defendant must be served in
Victoria unless service outside the jurisdiction is authorised: see Laurie v Carroll (1957) 98 CLR 310.
- Jurisdiction over the property or thing:
Jurisdiction in rem arises where the court can exercise command or control over the property or thing (res).
For example, jurisdiction in an action in rem arises where the action concerns property located in Victoria.
Similarly, an admiralty action in Australia is an in rem action where a shipping vessel has been attached or
arrested in Australian waters. Jurisdiction in an action quasi in rem may arise where any property or thing
belonging to a defendant is found within Victoria, although the proceedings do not directly concern the
property. In cases of quasi in rem jurisdiction, any consequent judgment in the proceeding is limited to the
monetary value of the res.
- By whom is jurisdiction exercised?

Constitution Act 1975 (Vic)

Section 75: Supreme Court of the State of Victoria[12] s. 75

(1) A Court shall be held in and for Victoria and its dependencies which shall be styled "The Supreme Court of the State of Victoria" which in this Part is
called "the Court".

(2) The Court consists of the Judges of the Court, the Associate Judges of the Court and the judicial registrars of the Court.
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(3) The Judges of the Court are
(a) the Chief Justice;
(b) the President of the Court of Appeal;
(c) such number of other Judges of Appeal as are from time to time appointed;
(d) such number of other Judges as are from time to time appointed.

(4) The Associate Judges of the Court are the Associate Judges appointed from time to time under section 104 of the Supreme Court Act 1986 , including
an Associate Judge who is the Senior Master.

(5) The judicial registrars of the Court are the judicial registrars appointed from time to time under Division 2A of Part 7 of the Supreme Court Act 1986 .

The Constitution (Court of Appeal) Act 1994 (amending the Supreme Court Act 1986) established a Trial Division of
the Supreme Court and a separate Court of Appeal. Prior to this legislation being introduced, the Supreme Court of
Victoria did not have a separate Court of Appeal. Any appeal was heard by the Full Court which usually comprised
of three judges (and sometimes five). None of the judges sitting on the Full Court could be the judge before whom
the proceeding on appeal had been conducted, but otherwise any judge could sit as a member of the Full Court.

As a result of the above legislation, the judges of the Court of Appeal are known as Judges of Appeal and the head of
the Court of Appeal is known as the President. Some of the judges of appeal were formally judges of the Supreme
Court.

The Court of Appeal has jurisdiction to hear and determine inter alia:

- All appeals from the Trial Division constituted by a judge


- All applications for new trials
- All appeals from the County Court constituted by a judge
- All appeals, applications, questions and other matters, whether civil or criminal, which, by or under any act
are referred to or reserved for the consideration of, or directed to be brought for argument before, the
Court of Appeal.

Practice Court

This court is established to deal with the ancillary business of the court. Interlocutory matters such as applications
for amendments, discovery, substituted service, injunctions and other matters are dealt with in this court. Prior to
1987 matters dealt with by the Practice Court were in fact dealt by judges sitting in chambers. Each hearing
conducted in the Practice Court is deemed to be a sitting of the court.

Judges can still in fact hear urgent matters out of court hours in their own chambers or homes or elsewhere all are
deemed to be a sitting of the court.

Associate Judges

Associate Judges (formerly Masters) of the Supreme Court perform adjudicative functions and assist the judges.
They usually hear interlocutory matters. Order 77 of the Supreme Court Rules details the authority of the Masters.

Procedure of the Supreme Court

The procedure of the Supreme Court is defined by the Supreme Court Rules (which will from hereinafter be
abbreviated to SCR). These rules are made by the judges of the Supreme Court pursuant to the Supreme Court Act
and earlier corresponding legislation. These rules were derived from the rules made after the introduction of the
judicature system in Victoria in 1883. A uniform procedure was adopted that combined the best of the processes
that previously had been separately employed in the Common Law and Equity jurisdictions. The recent re-
enactment of the Supreme Court Rules in 2005 has largely retained the substance, structure, and numbering of the
SCR, but has tidied up formatting and attempted to cast the rules into gender-neutral language.
Topic Two
Section 29 of the Supreme Court Act provides that every court exercising jurisdiction in Victoria in any civil
proceeding must so exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all
matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings
concerning these matters is avoided. This is the governing philosophy to which our civil justice system is geared.

Rules of the Supreme Court have the force of statute and a court is not prevented from exercising a jurisdiction given
by statute by reason of the absence of rules of procedure regulating the exercise of jurisdiction. The court has an
inherent jurisdiction to regulate its own procedure where the rules are silent.

Abuse of Process

As part of the Supreme Courts inherent jurisdiction to regulate its own procedure it has an inherent power to
prevent abuse of its process (Jago v District Court of NSW (1989) 168 CLR 23 per Gaudron J at p 74).

The Courts (Case Transfer) Act 1991(Vic)

This Act introduced a system of case transfer for all Victorian courts. It has two major thrusts:

- To transfer down from higher courts to lower courts, and up from lower courts to higher courts, groups of
cases for the purpose of adjusting the caseloads of the courts
- To transfer a case up or down when it is just and convenient to do so, having regard to its gravity, difficulty
and importance. Section 16 (1) of the Act sets out the criteria for individual case transfers:
o The transferor court does not have exclusive jurisdiction to hear and determine it
o The transferee court has the appropriate skill, experience and authority to hear and determine it
having regard to its gravity, difficulty and importance
o It is just and convenient that it be transferred.

The triggering mechanism as to whether to transfer an individual case may be initiated by a judicial or
administrative officer of the court in which the proceeding was commenced or by a party to the
proceeding.

Mode of Trial

Two methods of trial are prescribed in both the Supreme Court and the County Court trial by judge sitting alone,
and trial by judge sitting with jury. For further reference to this aspect of a trial, students are referred to r 47.02 and
r 5.08 of the SCR. Students are asked to note the requirements of each rule. Students must also make reference to
the relevant provisions of the Juries Act 2000 (Vic).

Review questions

Grosso whilst holidaying in Queensland, became ill and was required to receive a blood transfusion. Unfortunately for Grosso, the blood was infected and he
contracted the HIV virus. Grosso subsequently returned to Victoria and commenced to receive treatment. Because of his illness, he has become socially
ostracised, lost his employment and finds it difficult to be re-employed. He has also incurred massive medical and like expenses. He seeks legal advice from you.
You advise him that the correct defendants are (you can assume this information is correct):

- Commonwealth Serum Laboratories (who carry out all blood testing and storage). Its registered office is in Melbourne;
- Brisbane North Regional Hospital who performed the blood transfusion procedure. Its registered office is in Brisbane;
- Australian Red Cross who were responsible for the collection of blood. Its registered office is situated in South Australia;

Grosso commences proceedings from the Supreme Court of Victoria. All the defendants seek to have the proceedings transferred to the Supreme Court of the
State where its registered office is located. Advise all the parties whether this is possible.

Beston Parks Management Pty Ltd v Sexton 2008 VSC 95 (4th April 2008)

- Summary:
o Application for transfer of proceedings to South Australian Supreme Court.
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o Plaintiffs commenced proceedings in Victorian Supreme Court against former senior executives who failed to comply with terms of
employment.
o Defendants resided and conducted their principal business in Adelaide.
o All plaintiffs had registered offices and principal places of business in South Australia.
o Whether interests of justice required transfer of proceedings.
o Held: Application granted.
o Interests of justice required transfer of proceedings because parties essentially South Australian parties and events in question largely
occurred in Adelaide.

- In Beston Parks Management Pty Ltd & Anor v Sexton & Anor Hollingworth J considered, on an appeal from
a decision of a Master, an application for preliminary discovery under Rule 32.05. The fact situation is
familiar to commercial lawyers; executives enter into a agreement(s) upon leaving a company, presumably in
exchange for a pay out. The terms of the agreement(s) contain restrictive covenants preventing
them from competing against their erstwhile employer or using confidential information they acquired
during their tenure. The company suspects their formally loyal employees are about to set up in competition
when they receive emails inadvertently addressed to the loyal troupers care of their previous address.
- The decision is a useful analysis of a procedure which is not used as often as it should be. All to
commonly the plaintiff will issue proceedings with insufficient information and find out, upon discovery
that it needs to recast its case or that the initial suspicion falls at the early evidentiary hurdle. It is one thing
to amend a statement of claim to refine the allegations it is an entirely more difficult and fraught exercise to
recast a pleading to essentially change the cause of action.
- The practical problem for a potential applicant is not the first pre requisite, knowing whether it might have a
cause of action, but rather whether it has or doesnt have sufficient information to decide whether to
commence an action without preliminary discovery and whether it has made all reasonable enquiries
before making the application.
- Principles
o In applying the principles the Hollingworth said, at paragraph 52:
The rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information
to commence a proceeding, and to prevent the bringing of speculative suits. It must be given the fullest scope its language will reasonably
allow.
o Hence the court should recognise that while there is something more than a suspicion that the
applicant has suffered a loss caused by a wrong by the respondent it is not in a position to depose to
that in an affidavit or have counsel make submissions with that degree of finality.
o Her Honour made clear the more relaxed approach the court will take when she said at 53:
It is not necessary to show precisely what cause of action the applicant may have, merely that the facts are such from which it may
reasonably be believed that the applicant may have a right to obtain relief. The word may indicates that the putative belief does not
have to amount to a firm view that there is a right to relief. Although some fishing enquiry is permitted, a flimsy foundation or mere
hunch will not be sufficient to constitute reasonable cause. An applicant does not have to prove that there will be, only that there may
be, a real benefit from making the order. The benefit may be the drawing of an appropriate pleading with proper particulars and the
avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation.
o There lies the rub for a practitioner. Where does a hunch end and reasonable suspicion begin when
determining thee is reasonable cause and at when does fishing not permissible. As to reasonable
cause her Honour didnt (nor could she even if she wanted to) attempt to encapsulate what that
entails. Given the breadth of the Rule that would be self-defeating. But she did state the logical
underpinning of what such a belief should be based upon when she said:
The reasonable cause to believe requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient
information to decide whether to commence proceedings. So, an application cannot succeed if the applicant has sufficient information
(assessed objectively), but where the inability to determine whether to commence proceedings arises, for example, due to an overly
indecisive or cautious nature.
o What will doom an application is evidence that the applicant has, at the time of making the
application, decided to commence the proceeding (see par 56). There are no surprises there. The
application would constitute an abuse.
Topic Two
o In a clearly hard fight the respondents in this case argued that the applicants should reveal any legal
advice they received because that would be evidence of the genuineness of their belief as to
whether there is sufficient information to commence proceedings. In detailed analysis of this novel
argument (par 58 66) Hollingworth J emphatically rejected the argument for a range of reasons but
most importantly that such an argument would effectively abrogate legal professional privilege. As
she said, at par 66:
Finally, and most fundamentally, the privilege is a fundamental common law right, which can only be abrogated by clear words or
necessary implication.[19] A necessary consequence of the respondents argument is that r 32.05 would have the effect of abrogating
legal professional privilege in advice concerning the sufficiency of information in the hands of an applicant. There is nothing in the drafting
of the rule or the cases to suggest that the rule was intended to have any such effect.
- Practical issues
o A detailed affidavit attaching as much correspondence as possible evidencing:
the possible cause of action (here it was the restrictive covenants in termination
agreements;
the inquiries made by the applicant (here the emails back and forward between the
applicants and the respondents); and
the basis for believing there was a cause of action against the respondent (in this case the
respondents correspondence partly undid their protestations together with emails to the
respondents from the applicants competitors.
o In my experience the exchange between applicants solicitors and respondents lawyers often
generates material which assists in the subsequent application.
o It is important for the applicants to have prepared categories of discovery prepared for the
court. Obviously those categories will partly be framed by the prospective cause of action. But
given the nature of the application the applicants should take a more expansive approach.