• Any

Crosby v Kelly [2012] FCAFC 96

THE COURT ORDERS THAT:

1. Therespondent’s interlocutory application dated 22 December 2011 bedismissed.
2. Therespondent pay the applicants’ costs of the interlocutory application,which may be taxed immediately.
3. Theproceedings be listed before the docket judge on a date to be notified.
   
   

Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.

REASONS FOR JUDGMENT

BENNETT J

1. Iagree with the conclusions and orders proposed by Robertson J for the reasonsthat His Honourgives.

Associate:

Dated:4 July 2012

REASONS FOR JUDGMENT

PERRAM J

2. Iagree with the orders proposed by Robertson J. The result is, in some ways,surprising, but appears to be required by the decisionin Ruhani v Directorof Police[2005] HCA 42;(2005) 222 CLR 489. In effect,s 9(3) of theJurisdictionof Courts (Cross-vesting) Act 1987 (Cth) is to be understood as creatingsurrogate Commonwealth law by reference to the jurisdiction of the ACT SupremeCourt and thereafterproviding a law of the Commonwealth under which matters maythen be seen to arise. It is both the source of the underlying rightassurrogate Commonwealth law unders 122 of theConstitution and alsoa law defining the jurisdiction of this Court unders 77(i). Mr Dibb ofcounsel, who appeared for Dr Kelly, sought to distinguishRuhani on thebasis that it was concerned with the jurisdiction of the High Court rather thanthe definition of the jurisdiction of a federalcourt unders 77(i). Thisis true but, in my opinion, is a difference without a distinction. The analysisabove is unaffected by the difference.
3. MrDibb also sought to say thats 9(3) was to be construed so as not to be aconferral of jurisdiction but rather merely as the expression by theCommonwealth Parliamentof its consent to a conferral of jurisdiction. Thatinterpretation was rejected by Gummow and Hayne JJ at [116]-[127] inReWakim; ex parte McNally[1999] HCA 27;(1999) 198 CLR 511 and Gleeson CJ and Gaudron Jagreed with that analysis. For that reason, the submission cannot be accepted. I agree with the reasonsgiven by RobertsonJ.

Associate:

Dated:4 July 2012

REASONS FOR JUDGMENT

ROBERTSON J

Introduction

4. Thisproceeding for defamation in respect of words alleged to have been published inthe Australian Capital Territory, amongst otherplaces in Australia, wascommenced in the Australian Capital Territory District Registry of this Court byan originating applicationfiled on 24 November 2011. The present issue, raisedby the respondent by an interlocutory application, is whether the Federal Courthas jurisdiction to hear and determine the substantiveproceeding.

The pleadings

5. Theapplicants have been Directors of Crosby Textor Research Strategies Results PtyLtd since it commenced trading in 2002. LyntonCrosby AO is a former FederalDirector of the Liberal Party of Australia. At all material times the respondentwas a Member of theHouse of Representatives for the seat of Eden-Monaro, andwas Parliamentary Secretary for Agriculture, Fisheries and Forestry.
6. Bytheir Statement of Claim the applicants alleged that on or about 1 October 2011the respondent published certain words of andconcerning the applicants and thatthe matter complained of was defamatory of each of the applicants. It is allegedthat the wordswere published, using the Twitter software, to all those personswho were the followers of the respondent in each State and Territoryof theCommonwealth of Australia, including the Australian Capital Territory. Theapplicants claim damages, including aggravateddamages, costs and interest up tojudgment on the grounds stated in the statement of claim.
7. Noother cause of action is pleaded.

The jurisdictional issue

8. Byan interlocutory application filed on 23 December 2011 the respondent objectedto the competency of the originating applicationin the proceedings and soughtthe following orders:
   1. TheOriginating Application and Statement of Claim in these proceedings be setaside.
   2. Alternativelyto Order 1 above, the Originating Application and Statement of Claim in theseproceedings be dismissed.

3.Costs.

4.Such further or other orders as to this honourable Court may seemfit.

Grounds

1. TheFederal Court of Australia does not have jurisdiction to hear or determine theApplicants' claim.
   
   
9. Itis that interlocutory application which is before the Full Court fordetermination having been reserved unders 25(6) of theFederal Court ofAustralia Act 1976(Cth).
10. Nodefence to the statement of claim had been filed when the matter first came onfor argument before a Full Court on 19 April 2012.At the commencement of thathearing the Court asked counsel for the respondent whether the defence to befiled would include relianceon an implied freedom of political communication asstated in Lange v Australian Broadcasting Corporation[1997] HCA 25;(1997) 189 CLR 520at 560 and explained in the cases which have followedLange, and whetherthe defence would rely on the respondent’s position as a member of theHouse of Representatives and the privilegesand immunities of a member of theHouse of Representatives. Counsel replied that it seemed inevitable that thedefence would includesuch reliance, subject to his client’s instructions.
11. TheCourt therefore directed the respondent to file his defence and adjourned thematter. This was because where a matter pleadedby way of defence relies on aright, privilege or immunity founded in theConstitution, hereLange(above) or on a party’s position as a member of the House ofRepresentatives and the privileges and immunities of a member ofthe House ofRepresentatives, the matter would be likely to be in federal jurisdiction andwithin the jurisdiction of this Court.This would be by virtue of theConstitution,s 76(i): “a matter arising under thisConstitution, orinvolving its interpretation” ands 39B(1A)(b) of theJudiciaryAct 1903 (Cth). On that view it would not be necessary to consider thevalidity or operation in the Australian Capital Territory of the cross-vestinglegislation, that is, primarily, theJurisdiction of Courts (Cross-vesting)Act 1987 (Cth).
12. Howeverthe defence filed on 4 May 2012 did not raise such a defence. Instead, thedefence denied that the matter complained of borethe pleaded imputations;denied that the matter complained of was defamatory of either applicant andfurther said that the mattercomplained of was substantially true.
13. Ittherefore became necessary again to set down for hearing the interlocutoryapplication raising the question of the Court’sjurisdiction.
14. Thepleadings have now closed as the applicants do not intend to file a reply to thedefence.
15. Therespondent served an amended notice unders 78B of theJudiciary Act1903 (Cth) dated 18 May 2012 since the applicants had not originally reliedon, and the respondent had not originally challenged the validityof,s 9(3) of theJurisdiction of Courts (Cross-vesting) Act 1987 (Cth).The nature of the Constitutional matter there set out was asfollows:

Doess4(1) of theJurisdiction of Courts (Cross-vesting) Act 1993 (ACT)validly confer jurisdiction on the Federal Court ofAustralia?

Doess9(3) of theJurisdiction of Courts (Cross-vesting) Act1987 (Cth)validly confer jurisdiction on the Federal Court ofAustralia?

Is the common law of Australia as it applies in the Australian Capital Territorya law "made by the Parliament" within the meaningofs76(ii) of theConstitution?

Is Chapter 9 of theCivil Law (Wrongs) Act 2002 (ACT) a law "made by theParliament" within the meaning ofs76(ii) of theConstitution?

16. Aswill appear, in my opinion it is necessary and appropriate only to consider thesecond of these matters.
17. Section9 of theJurisdiction of Courts (Cross-vesting) Act 1987 (Cth)provides:

9(1) Nothing in this or any other Act is intended to override or limit theoperation of a provision of a law of a State relatingto cross-vesting ofjurisdiction.

(2) The Supreme Court of a Territorymay:

(a) exercise jurisdiction (whether original or appellate) conferred on thatcourt by a provision of this Act or of a law of a Staterelating tocross-vesting of jurisdiction; and

(b) hear and determine a proceeding transferred to that court

under such aprovision.

(3)The Federal Court or the Family Courtmay:

(a)exercise jurisdiction (whether original or appellate) conferred on thatcourt by a provision of this Act orof a law of the Australian CapitalTerritory or the Northern Territoryrelating to cross-vesting ofjurisdiction; and

(b) hear and determine a proceeding transferred to that court under such aprovision.

(emphasis added)

Submissions

18. Inrelation to the question whethers 9(3) of theJurisdiction of Courts(Cross-vesting) Act 1987 (Cth) validly conferred jurisdiction on the FederalCourt of Australia, by his revised submissions the respondent contended thatithad been repeatedly said thatss 76 and77 of theConstitution areexhaustive. With reference to the language ins 77(i) of theConstitution,a law “defining” the jurisdiction of the Federal Court must be a lawthat sets out that jurisdiction with some specificity.The relevant provisionis:
    77. Withrespect to any of the matters mentioned in the last two sections the Parliamentmay make laws:

(i) defining the jurisdiction of any federal court other than the HighCourt;

(ii) . . . ;

(iii) . . . .

19. Therespondent submitted thats 9(3) could not be regarded as defining thejurisdiction of the Federal Court with respect to any of the matters inss 75 and76 of theConstitution. It appeared only to open the way for theLegislative Assembly of the Australian Capital Territory to define it if, andas, it choseto do so. That was whatRe Wakim; Ex parte McNally[1999] HCA 27;(1999)198 CLR 511 (Re Wakim) made clear could not be done. Accordingly,s 9(3) did not confer jurisdiction pursuant tos 77(i). The respondentsubmitted thatSpinks v Prentice[1999] HCA 27;(1999) 198 CLR 511 andNorthernTerritory v GPAO (1999) 196 CLR 553 (GPAO) were distinguishable as inthose cases there was another law made unders 122. In any event, therespondent submitted, theJurisdiction of Courts (Cross-vesting) Act 1987(Cth) was intended to facilitate hearing by the Federal Court of a mattertransferred to it and it was not intended to create a wholenew source oforiginal jurisdiction. The respondent placed reliance on paragraph (b) of thepreamble to that Act. It was submittedthat the cross-vesting scheme was notdirected to enabling a plaintiff simply to commence proceedings in any court hechose.
20. Theapplicants, by their revised submissions, contended relevantly that the FederalCourt had jurisdiction by the combined operationofs 4(2) of theJurisdiction of Courts (Cross-vesting) Act 1993 (ACT) ands 9(3) oftheJurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The applicantssubmitted thatRe Wakim (above) had no application to the AustralianCapital Territory and referred toGPAO(above). The applicants submittedthat, contrary to the respondent’s submission, the jurisdiction of theFederal Court couldbe “defined” by reference to the laws of theAustralian Capital Territory. The applicants also submitted that the effectofthe cross-vesting legislation was to confer additional jurisdiction on courtsotherwise lacking that jurisdiction.
21. TheAttorneys-General of the Australian Capital Territory and of the NorthernTerritory, intervening unders 78A of theJudiciary Act 1903(Cth),filed a joint written outline of submissions. They submitted that the FederalCourt may exercise jurisdiction in this matterby operation ofs 9(3) oftheJurisdiction of Courts (Cross-vesting) Act 1987 (Cth) which conferredthe jurisdiction described ins 4(1) of theJurisdiction of Courts(Cross-vesting) Act 1993 (ACT). They relied onGPAO(above) at[87]-[91], [128]-[132], [171] and [254]-[255];Re Wakim (above) at [25]and [29]; andSpinks v Prentice (above) at [82] and [175] for theproposition that ss 76(ii) and 77(i) permitted the conferral of originaland appellate jurisdictionon the Federal Court in respect of matters arisingunder a Commonwealth Act made pursuant tos 122 of theConstitution. They alsosubmitted, in reliance on Re Wakim (above) at [105], that there was noobjection to the conferral of such jurisdiction that is defined by reference tothe content,from time to time, of a law of the Australian Capital Territory.They adopted the submissions of the Attorney-General of the Commonwealthinrelation tos 9(3).
22. Thesubmissions on behalf of the Attorney-General of the Commonwealth, alsointervening unders 78A of theJudiciary Act 1903(Cth), contendedthat the Federal Court had jurisdiction in the present matter on the basis thatjurisdiction has been validly conferreddirectly bys 9(3) of theJurisdiction of Courts (Cross-vesting) Act 1987 (Cth). She submitted thatthe Commonwealth Parliament may confer on the Federal Court jurisdiction withrespect to a matter arisingunder a Commonwealth law supported bys 122 oftheConstitution: GPAO(above) at [91] and [257]-[258] and Spinks vPrentice (above) at [175].
23. TheJurisdiction of Courts (Cross-vesting) Act 1993 (ACT)provides:

4(1) The Federal Court has and may exercise original and appellate jurisdictionin respect of ACT matters.

The Dictionary to thatAct defines ACT matter to mean a matter—

(a)in which the Supreme Court has jurisdiction otherwise than by reason of alaw of the Commonwealth or of another State; or

(b)removed to the Supreme Court undersection 8.

24. TheSupreme Court Act 1933 (ACT) relevantlyprovides:

20(1) The court has the followingjurisdiction:

(a)all original and appellate jurisdiction that is necessary to administerjustice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of theTerritory.

25. Forcompleteness, it should also be noted that theAustralian Capital Territory(Self-Government) Act 1988 (Cth) provides:

48A(1) The Supreme Court is to have all original and appellate jurisdictionthat is necessary for the administration of justicein the Territory.

(2) In addition, the Supreme Court may have such further jurisdiction as isconferred on it by any Act, enactment or Ordinance,or any law made under anyAct, enactment or Ordinance.

(3) The Supreme Court is not bound to exercise any powers where it hasconcurrent jurisdiction with another court or tribunal.

48AANothing insection 48A is to be taken to imply that a law of the AustralianCapital Territory may not confer on the Federal Court of Australia originalorappellate jurisdiction in any matter in respect of which, by virtue ofsection48A, jurisdiction is conferred on the SupremeCourt.

26. TheAttorney-General of the Commonwealth submitted that the jurisdiction conferredon the Supreme Court bys 20(1) of theSupreme Court Act 1933 (ACT)clearly extended to hearing and determining claims arising in the AustralianCapital Territory under the common law of defamationand Chapter 9 of theCivil Law (Wrongs) Act 2002 (ACT). She submitted that the Supreme Courthad jurisdiction with respect to the present matter “otherwise than byreason ofa law of the Commonwealth or of another State” as that languagewas clearly intended to capture matters in which the SupremeCourt exercisedjurisdiction conferred by or under ACT enactments.
27. Althoughs 9(3) referred in terms to a law of the Australian Capital Territoryconferring jurisdiction on the Federal Court the correct construction,it wassubmitted, was that the Commonwealth Parliament itself conferred jurisdiction onthe Federal Court.
28. Consistentlywith the approach of the High Court inRuhani v Director of Police (2005)222 CLR 527 (Ruhani), it was submitted thats 9(3) of theJurisdiction of Courts (Cross-vesting) Act 1987 (Cth) should be read aspicking up, as Commonwealth law, the Supreme Court's jurisdiction to hear anddetermine the present dispute.No second law under s 122 was necessary, shesubmitted, as the same provision could, and here did, both confer jurisdictionand createrights, those rights having the force of laws of the Commonwealth inrespect of which a matter may arise withins 76 (ii) of theConstitution:reference was made toR v Commonwealth Court of Conciliation and Arbitration;Ex parte Barrett[1945] HCA 50;(1945) 70 CLR 141 (Barrett);Hooper v Hooper[1955] HCA 15;(1955) 91 CLR 529 andRuhani (above).

Consideration

29. Atfirst glance,s 4(2) of theJurisdiction of Courts (Cross-vesting) Act1987 (Cth) appears to supply the gateway to the present issue. It providesthat where the Supreme Court of a Territory has jurisdictionwith respect to acivil matter then jurisdiction is conferred on the Federal Court, if it wouldnot apart from the section have jurisdictionwith respect to that matter. Buts 3(1) of that Act provides that “Territory” does not includethe Australian Capital Territory and “State” doesinclude theAustralian Capital Territory.
30. Itis therefore necessary to go tos 9(3) of that Act which I have set outabove.
31. Itwill be recalled that inRe Wakim (above),s 9(2) of theJurisdiction of Courts (Cross-vesting) Act 1987 (Cth) was held invalid asan attempt to confer jurisdiction on the Federal Court that was not found ins 75 ors 76 of theConstitution.
32. Earlier,inGPAO (above) a majority of the High Court had held thats 76(ii)of theConstitution, in conjunction withs 77(i) of theConstitution,permitted the conferral of jurisdiction on federal courts in matters arisingunder laws made unders 122 of theConstitution: seeGPAO (above) at[91], [132] and [254]. The federal court in that case was the Family Court ofAustralia and the law made unders 122 of theConstitution wass 69ZG of theFamily Law Act 1975 (Cth), providing thatPt VII of that Act applied inand in relation to the Northern Territory so that a parenting order could bemade by the Family Court in respectof a child that was not the child of amarriage.
33. Section122 provides:
    122. TheParliament may make laws for the government of any territory surrendered by anyState to and accepted by the Commonwealth, orof any territory placed by theQueen under the authority of and accepted by the Commonwealth, or otherwiseacquired by the Commonwealth,and may allow the representation of such territoryin either House of the Parliament to the extent and on the terms which it thinksfit.
34. InSpinks v Prentice(above), decided at the same time asRe Wakim(above), orders for examination were made by the Federal Court under theCorporations Law (ACT). The High Court held thats 51(1) of theCorporations Act1989 (Cth) validly conferred jurisdiction on theFederal Court under theCorporations Law (ACT). Bys 51(1),jurisdiction was conferred on the Federal Court “with respect to civilmatters arising under theCorporations Law of the CapitalTerritory”. The High Court gave the answers “yes” to thequestions whethers 51(1) was a law defining the jurisdiction of a federalcourt other than the High Court withins 77(i) and with respect to a matterarising under a law made by the Parliament withins 76(ii): see especially[1999] HCA 27;(1999) 198 CLR 511 at[172] and [175] and also at [25] per Gleeson CJ, [27] and[30] per Gaudron J and [82] per McHugh J. The High Court followed the thenrecentdecision inGPAO(above), on the assumption thats 122 of theConstitution was the sole source of power to make theCorporations Law(ACT).
35. Onthis analysiss 9(3) of theJurisdiction of Courts (Cross-vesting) Act1987 (Cth) itself, together, if necessary, withs 19 of theFederal Court of Australia Act1976 (Cth) which provides that the Court has such original jurisdiction asis vested in it by laws made by the Parliament, conferred jurisdictionon theFederal Court:Re Wakim(above) at [105], [107], [108] and [114]. Thatprovision is a law made by the Parliament withins 76(ii) of theConstitution. It picks up, as Commonwealth law, the jurisdiction of theAustralian Capital Territory Supreme Court to hear and determine the presentdispute:Ruhani(above) at 527.
36. InRuhani (above) the High Court considereds 5(3) of theNauru(High Court Appeals) Act 1976(Cth). The section provided that where theAgreement (between the Government of Australia and the Government of theRepublic of Nauru,signed on 6 September 1976) provided that an appeal wasto lie to the High Court of Australia from the Supreme Court of Nauru withtheleave of the High Court, the High Court had jurisdiction to hear and determinean application for such leave. It was held thatthis provision was a law made bythe Parliament in exercise of its authority unders 76(ii) of theConstitution to make laws conferring original jurisdiction on the High Court inany matter “arising under any laws made by the Parliament”.Therelevant matters arose under federal law because they owed their existence tothe adoption and translation into Australian lawof Articles 1 and 2 of theAgreement. The Nauru Act performed the double function of creating and enforcingrights.
37. Here,the content of the law is derived from the law of the Australian CapitalTerritory: see Ruhani(above) at 499. Although there is some infelicityin that law being defined to mean a matter “in which the Supreme Court hasjurisdiction otherwise than by reason of a law of the Commonwealth or of anotherState”, it is sufficiently clear that thereference is to matters in whichthe Supreme Court has jurisdiction otherwise than by reason directly of a law ofthe Commonwealthor of another State, that is, where the Supreme Court exercisesjurisdiction by virtue of Australian Capital Territory enactments.In the caseof a State, such a direct law of the Commonwealth would bes 39(2) of theJudiciary Act 1903(Cth).
38. Ireject the respondent’s submission thats 9(3) of theJurisdictionof Courts (Cross-vesting) Act 1987 (Cth) is not a law “defining”the jurisdiction of the Federal Court because it does not set out thatjurisdiction withsufficient specificity. In my opinion that submission isinconsistent withSpinks v Prentice(above). The earlier general dicta inAbebe v Commonwealth[1999] HCA 14;(1999) 197 CLR 510 at[226] per Kirby J andGould v Brown (1998) 193 CLR 346 at [187] per Gummow J do not qualify orcontradict what was said by the Court inSpinks v Prentice (above) and inRuhani (above).
39. AsI have set out, the respondent submitted thatSpinks v Prentice (above)andGPAO (above) were to be distinguished on the basis that in each ofthose cases there was another law made by the Parliament under s 122.In myopinion this search for a second law made under s 122 was misplaced and was nota viable basis of distinction. This is becausethere is no reason why a law madeunder s 122, here theJurisdiction of Courts (Cross-vesting) Act 1987(Cth), may not confer jurisdiction on this Court by reference to the law ofthe Australian Capital Territory rather than laws madeby the CommonwealthParliament, assuming theSupreme Court Act 1933(ACT) and Chapter 9 oftheCivil Law (Wrongs)Act 2002 (ACT) or the common law to be suchterritory laws. This is becauses 9(3), in my opinion, both confers jurisdictionand creates rights arising under that provision. Those rights have the force oflaws ofthe Commonwealth in respect of which a matter may arise.
40. Irefer first toBarrett (above) at 155 and 169, with reference to s 58E oftheCommonwealth Conciliation and Arbitration Act 1904-1934(Cth), whichwas relevantly in the following terms:

58E(1)The Court may, uponcomplaint by any member of an organization and after giving any person againstwhom an order is soughtan opportunity of being heard, make an order givingdirections for the performance or observance of any of the rules of anorganizationby any person who is under an obligation to perform or observethose rules.

(2)Any person who fails to comply with such directions shall be guilty of anoffence.

41. InHooper v Hooper (above) at 535-538 the High Court appliedBarrett(above) with reference to ss 10, 11 and 12 of Part III of theMatrimonialCauses Act 1945(Cth). The High Court said at 537 that the State laws towhich the force of federal law was given were those which might exist fromtimeto time.
42. Irefer also the reasoning to the same effect inO'Neill v Mann[2000] FCA 1180;(2000) 101FCR 160 at[37] per Finn J, with which, with respect, I agree.
43. InRuhani (above) the High Court appliedBarrett (above) at [8],[61], [80]-[81] and [111].
44. Ialso reject the submission that theJurisdiction of Courts (Cross-vesting)Act 1987(Cth) was intended only to facilitate hearing by the Federal Courtof a matter transferred to it and it was not intended to createa new source oforiginal jurisdiction. The respondent placed reliance on the preamble, paragraph(b). In my opinion the languageof the Act shows that the Act was intended and,for the Australian Capital Territory, continues to be intended to conferjurisdictionon the Federal Court even where, as here, there has not been atransfer of proceedings. I refer to the balance of the preamble andto the termsof s 5 in contrast to the terms of s 9. I refer also to the structureof s 9(3) dealing separately, in paragraphs (a)and (b), with the jurisdictionconferred on the Court by reference to the content of a territory law relatingto cross-vesting andthe hearing and determination of proceedings transferredunder such a provision. See also the Explanatory Memorandum to theJurisdictionof Courts (Cross-Vesting) Bill 1986 at paragraph 5; andBankinvest AG vSeabrook(1988) 14 NSWLR 711 at 713, 724 and 725-6.
45. Inmy view this analysis establishes the jurisdiction of the Federal Court to hearand determine the substantive defamation proceedings.It follows that theinterlocutory application should be dismissed.
46. Becauseit is not necessary to decide other jurisdictional questions involving theConstitution the Court should not do so: seeICM Agriculture Pty Ltd vCommonwealth[2009] HCA 51;(2009) 240 CLR 140 at[141] and the authorities there cited. Inparticular, I do not consider whether disputes under Chapter 9 of theCivilLaw (Wrongs) Act 2002 (ACT) or the common law as it applies in theAustralian Capital Territory otherwise arise under laws made by the Parliamentwithins 76(ii) of theConstitution: compareO’Neill v Mann[2000] FCA 1180;(2000) 101 FCR 160.

Conclusion and orders

47. Forthese reasons I would dismiss the respondent’s interlocutory applicationdated 23 December 2011, with costs. The proceedingsshould be listed beforethe docket judge on a date to be fixed. An issue arose under r 40.13 of theFederal Court Rules 2011 as to whether the Court should order that thecosts of this interlocutory application be taxed immediately. In my view, suchanorder should be made given the discrete nature of the jurisdictional questionraised by the respondent’s interlocutory application.
    
    

Associate:

Dated:4 July 2012