Section 79 Judiciary Act 1903 — How Widely Does it Travel?
| Date | 01 December 1987 |
| DOI | 10.1177/0067205X8701700401 |
| Published date | 01 December 1987 |
| Subject Matter | Article |
SECTION 79 JUDICIARY ACT 1903 -HOW WIDELY DOES
IT
TRAVEL?
BY
CA
TRION A COOK*
INTRODUCTION
A re-examination
of
the application and effect
of
s 79
of
the Judiciary Act
1903 (Cth) -that "tangled and technical" topic1 -
is
called for
by
three
developments: the institution, in 1976,
of
the
procedure which the High Court
has used to remit all diversity suits to other courts;2 the establishment
of
the seat
of
the High Court
in
the Australian Capital Territory; 3 and the enactment
of
cross-vesting legislation in
all
Australian jurisdictions.
4
Those events have raised problems
as
to
the
law applicable when a court is
exercising federal jurisdiction. A related question, to which no consistently
satisfactory answer has been given,
is:
which is the most appropriate court
to
which
to
remit any particular case? That problem will be discussed below,
although it
is
likely
to
arise less frequently with the coming into force of the new
legislation on the cross-vesting
of
jurisdiction.
5
As
a result of that legislation, the
practice
of
litigants commencing diversity suits in the High Court
is
likely
to
cease. 6 That,
in
tum, will obviate the need for the High Court
to
remit those
cases
to
other courts. Still, the issue
of
the applicable law will not necessarily
cease to arise; and when it does it will be
in
the Federal Court or State Courts
rather than
in
the High Court. Moreover, many other actions falling within the
High Court's original jurisdiction will still have
to
be commenced there; for
given s
75
of
the Constitution, they cannot
be
instituted in any other court. 7
The rules governing the applicable law when a court is exercising federal
jurisdiction are given
in
ss
79
and
80
of
the Judiciary Act 1903 (Cth).
79 The laws
of
each State or Territory, including the laws relating to procedure,
evidence, and the competency
of
witnesses, shall, except
as
otherwise provided
by
the Constitution or the laws
of
the Commonwealth,
be
binding on all Courts
exercising federal jurisdiction in that State or Territory
in
all cases to which they
are applicable.
* Lecturer-in-Law, Australian National University. The research assistance
of
Candida Brebner,
final year student at the Law School,
is
gratefully acknowledged.
Since this article was written, the High Court has handed down its decisions
in
two
of
the cases
referred to. They are Oceanic Sun Line Shipping Co Inc v Fay (1988) 79 ALR 9 and Breavington v
Godleman (1988) 80 ALR 362.
1Suehle v The Commonwealth (1967)
116
CLR 353, 357 per Windeyer. J.
2 Judiciary Act
1903
(Cth) s 44.
In
1976, the then exisiting s 44
was
repealed and replaced with
the
present one (Judiciary Amendment Act 1976 sub-s 9(1)).
3 High Court
of
Australia Act 1979 (Cth) s
14.
4 The legislation under which the scheme will operate
is
entitled Jurisdiction
of
Courts (Cross-
Vesting) Act 1987
in
each jurisdiction. See Act No 24
of
1987 (Cth);
No
125, 1987 (NSW);
No
41,
1987
(NT);
No
88,
1987
(Qid); No 67,
1987
(SA);
No
78, 1987 (Tas); No 29,
1987
(Vic);
No
68,
1987
(WA).
5 For an explanation
of
the background to and an appraisal
of
the legislation see C Baker "Cross-
vesting
of
Jurisdiction between State and Federal Courts" (1987)
14
UQU
118.
6 For reasons explained infra
at
n 26.
7 They cannot be commenced
in
the Federal Court
as
it does not have jurisdiction over such
matters. Nor can they be instituted
in
State courts because
of
s 38
of
the Judiciary Act which makes
much
of
the s
75
jurisdiction exclusive to the High Court.
200 Federal Law Review [VOLUME
17
80 So far
as
the laws of the Commonwealth are not applicable or so far
as
their
provisions are insufficient to carry them into effect, or
to
provide adequate
remedies or punishment, the common law
of
England
as
modified by the
Constitution and by the statute
law
in force
in
the State or Territory in which the
Court in which the jurisdiction is exercised
is
held shall, so far
as
it is applicable
and not inconsistent with the Constitution and the laws of the Commonwealth,
govern all Courts exercising federal jurisdiction
in
the exercise
of
their jurisdiction
in civil and criminal matters.
These sections presuppose the possibility
of
the Constitution
or
a law
of
the
Commonwealth applying. When an action arises under a Commonwealth statute,
the provisions
of
that statute will govern the substantive questions in the matter.
Procedure, in so far as it is not governed by the statute, is governed by the
procedural rules
of
the jurisdiction in which the action is brought. But when a
State
or
Territory court, dealing with a common law matter such as a contract
action, is exercising its federal jurisdiction simply because the litigants are, say,
residents
of
different States,
or
because the Commonwealth is a party, then there
is no Commonwealth statute to provide the substantive rules, and ss 79 and 80
come into play.
This article is primarily concerned with the question
of
the law applicable in
the High Court when exercising its original jurisdiction, in the Federal Court,
and in other courts exercising federal jurisdiction. The discussion will
be
on the
basis
of
assumptions which, while possibly not beyond challenge, are certainly
well established.
The
first assumption is that the federal Parliament was constitutionally
competent to enact ss 79 and 80 in relation to matters within federal jurisdiction,
including diversity cases.
8
Secondly, it is assumed that ss 79 and 80 are not themselves choice
of
law
rules. Rather are they provisions which identify the applicable law in the sense
of
the whole body
of
law
of
a particular jurisdiction, including the choice
of
law,
or
conflicts, rules which form part
of
that law.9
Thirdly, s 79 does no more than pick up State laws with their meaning
unchanged.
10
This proposition is not, however, as straightforward as it seems.
Although it was stated by Kitto J in Pedersen v Young
11
that the Judiciary Act
cannot give a State statute new meaning,
12 several decisions have given wider
effect to provisions in State legislation, as a result
of
the application
of
s 79, than
8 M Pryles and P Hanks Federal Conflict
of
Laws (1974}, O'Brien "The Law Applicable
in
Federal
Jurisdiction" (1975-1976) I
UNSWU
327
cf
PO Phillips QC "Choice
of
Law
in
Federal
Jurisdiction" (1961) 3 MULR 170.
9 Musgrave v Commonwealth (1937)
57
CLR 514; Huddart Parker Ltd v The Ship Mill Hill & Her
Cargo (1950)
81
CLR 502; The Commissioner
of
Stamp Duties (NSW) v Owens (No 2) (1953) 88
CLR
168;
R v Oregan; Ex parte Oregan (1957)
97
CLR 323; Deputy Commissioner
of
Taxation for
the State
of
NSW v Brown (1958) 100 CLR 32; Pedersen v Young (1964)
110
CLR
162;
Parker v
Commonwealth (1965)
112
CLR 295; Anderson v Eric Anderson Radio &
TV
Pty Ltd (1965) 114
CLR 20; Suehle v Commonwealth (1967)
116
CLR 353; John Robertson & Co Ltd v Ferguson
Transformers Pty
Ltd
(1973)
129
CLR
65
but cfMason J at 95. Also cfPryles and Hanks Federal
Co7f.ict
of
Laws (supra at n 8).
In
Chapter 5 the authors refer
toss
79 and 80
as
"choice
of
law" rules.
1 The Commissioner
of
Stamp Duties (NSW) v Owens (No 2) (1953)
88
CLR
168;
Pedersen v
Young (1964)
110
CLR 162.
II
(1964)
110
CLR 162, 165.
12
In
that instance, by converting a State limitation
of
actions provisions into a provision limiting
the time for the commencement
of
actions outside that State.
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