Civil Procedure Semester 1, 2017 by Adrienne Park Civil ... · Civil Procedure Prior to Proceedings This summary note was written and updated for the purpose of preparing online quiz

Civil Procedure Prior to Proceedings

This summary note was written and updated for the purpose of preparing online quiz during the civil procedure course based on the lecture slides and the textbook, Principles of Civil Procedure in

Queensland by By Bernard Cairns.

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Civil Procedure Semester 1, 2017 by Adrienne Park

Summary Content

1. Introduction to Jurisdiction…………………………………………………………………………………………….…………..2

2. State Jurisdiction (QLD)………………………………………………………………………………………………….……………2

Supreme Court……………………………………………………………………………………………………………….4

District Court………………………………………………………………………………………………………………….4

Magistrates Court…………………………………………………………………………………………..…..…………6

3. Federal Jurisdiction and Courts…………………………………………………………………………………………………..8

High Court……………………………………………………………………………………………………………...………8

Federal Court…………………………………………………………………………………………………….……………8

o Limits on Federal Jurisdiction…………………………………………………………………..………..9

o Re Wakim…………………………………………………………………………………………………..……..9

4. Cross Vesting Scheme…………………………………………………………………………………………………….…………12




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Introduction to Jurisdiction

State Supreme Court (Supreme Court of Queensland)

Constitutional role as the widest jurisdiction in each state.

Lesser state court (District and Magistrates/Local Courts)

Federal Courts (High Court of Australia, Federal Court of Australia, Federal Magistrates Court)

Territorial Jurisdiction

Issues of cross state disputes (Cross-vesting scheme)

Issues of state law in Federal Court (Associated jurisdiction

Queensland Courts

The Queensland court system consist of:

1. The Supreme Court of Queensland

2. The District Court of Queensland

3. The Magistrates Courts

4. The Planning and Environment Court

5. The Land Court

6. The Land Appeal Court

7. The Industrial Court of Queensland




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If a proceeding pending in the Supreme Court is within the jurisdiction of the District Court or a

Magistrate Court then the Supreme Court may order a transfer to the appropriate court: s 25.

The District Court may transfer a proceeding to a Magistrates Court if the proceeding is within

the Magistrates Court jurisdiction: s 26. If a matter of principle is involved in a proceeding in the

District Court or a Magistrates Court, the proceeding may be transferred to the Supreme Court:

s 25. The District Court may order the proceeding pending in a Magistrates Court be transferred

to the District Court: s26.




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Supreme Court of Queensland

The Queensland Supreme Court was the original court set up in the colony of Queensland.

As the original court it inherited the powers and jurisdictions of the common law and equity

courts in UK at the time.

Successive Supreme Court Acts and Constitution Acts have not established the court – they have

recognised its pre-existence.

As the successor court in Queensland for the common law and equity courts the Supreme Court

is defined as a ‘superior court of record’ with unlimited jurisdiction for the ‘administration of

justice.’ (s 58 Constitution of Queensland Act 2001 (Qld))

As a ‘Superior Court of the Record’ the Supreme Court is recognised as having inherent powers

to:

Control its own process, including contempt

Enforcing its judgments

Able to conduct judicial review through the prerogative writs.

By possessing ‘unlimited jurisdiction for the administration of justice’ the Supreme Court is

recognised as having inherent powers to:

Determine and conclusively decide all substantive areas of law (common law and equity)

Be able to grant all remedies known to law (including equitable remedies)

These inherent powers are given to the court by the common law. Therefore, they can be

supplemented and modified by statute.

For example Judicial Review Act 1991 (Qld) prohibits the Supreme Court from issuing the

prerogative writs but authorises the Supreme Court to undertake judicial review according to a

statutory scheme (Part 2, 4 Judicial Review Act 1991 (Qld).

To a degree – see Chapter III Constitution, Kirk v Industrial Court of NSW and the Beck reading.

District Court of Queensland




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Recognised in s 57 Constitution of Queensland Act 2001 (Qld).

Established by District Court of Queensland Act 1967 (Qld).

Possesses only the jurisdiction given to it by statute

Key limit $750,000 (s 68(1)(a) + (2) ).

Provided within limit has all powers of Supreme Court to hear and give relief in (ss 68, s69: Powers of District Court):

Personal actions

Property actions

Claims for equitable damages

The District Court has the same power and authorities as the Supreme Court, in a similar case or

similar circumstances to: Basha v Bash [2010] QCA 123.

o Grant relief or a remedy;

o Make any order including attachment or committal for disobedience to an order

o Give effect to every ground of defence or legal or equitable set off

Without limiting the generality of this power, the District Court may:

o Make a declaration of the rights of the parties;

o Issue a final, interim or interlocutory injunction; s 69 (2)

Ultra-Tune Systems (Aust) Pty Ltd v Startuen Pty Ltd [1991] 1 Qd R 192 : The

District Court also had jurisdiction to issue an interlocutory injunction as a claim

for damages was personal action for the District Court had jurisdiction under the

District Court of Queensland Act 1967.

o Stay a proceeding;

o Appoint a receiver or interim receiver: s69

If the claim exceeds the court’s monetary limits, the plaintiff may abandon the excess and

restrict the claim to an amount within the court’s jurisdiction: s 73.




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68 Civil jurisdiction (1) The District Court has jurisdiction to hear and determine— (a) all personal actions, where the amount, value or damage sought to be recovered does not

exceed the monetary limit including the following— (i) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated; (ii) any claim for detention of chattels; (iii) any claim for rent or mesne profits; (iv) any claim for any debt, damages or compensation arising under any Act; and

(2) In this section— monetary limit means $750,000.

Magistrate Court of Queensland

Established by Magistrates Court Act 1921 (Qld)

Possess only the jurisdiction given to it by statute

A party who is dissatisfied with any decision of the court maybe within 7 days, apply to the court

for a new trail. If the Magistrates Court accedes to the application, it may conduct a new trial: s

44.

44 New trial

(1) Subject to this Act, any party dissatisfied with any decision of a Magistrates Court may, at any

time within 7 clear days from such decision, apply to the court for a new trial.

(2) The court may grant the same upon such terms as to costs or otherwise as it thinks fit, or, in its

discretion, may refuse the same with or without reasonable costs.




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Key limits

o $150,000 (s 4 + s 2(Dictionary))

o Only personal actions (equity or common law) but no property (THEREFORE property

District or Supreme only)

o No interlocutory injunctions

o No jury trials - ‘summary’ only

4 Jurisdiction of Magistrates Courts

Subject to this Act—

(a) every personal action in which the amount claimed is not more than the prescribed

limit, whether on a balance of account or after an admitted set off or otherwise; and

(b) every action brought to recover a sum of not more than the prescribed limit, which

is the whole or part of the unliquidated balance of a partnership account, or the amount or

part of the amount of the distributive share under an intestacy or of a legacy under a will;

and

(c) every action in which a person has an equitable claim or demand against another

person in respect of which the only relief sought is the recovery of a sum of money or of

damages, whether liquidated or unliquidated, and the amount claimed is not more than the

prescribed limit;

may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective

districts have power and authority to hear and determine in a summary way all such actions.

2 Definitions

prescribed limit means $150,000.

Jurisdiction in Queensland summary




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Personal Actions up to $150,000 Magistrate Court

Personal Actions $150,001-750,000 District Court

Property Actions up to $750,000 District Court

Personal Actions great than 750,001 Supreme Court

Property Actions great than $750,001 Supreme Court

Federal Jurisdiction and Courts

High Court of Australia

Established by Constitution Chapter III

Has ‘original jurisdiction’ in a narrow range of matters (s 75)

Suits involving Cth (s 75(iii))

Disputes between States (s 75(iv))

‘Constitutional writ review’ of ‘offices of the Cth’ (s 75(v))

Interpretation of Constitution (s 76(i))

Arising under laws made by Cth Parliament (s 76(ii))

Has ‘Appellate’ jurisdiction to hear appeals from State Supreme Courts (s73)

But applicant must get ‘special leave’ from the HC to bring appeal (Judiciary Act 1903 (Cth) Part

V div 1)

Federal Court of Australia

Established by Federal Court of Australia Act 1976 (Cth)




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Is a ‘superior court of the record’ and is a ‘court of law and equity.’ (s 5) However, it does not

originally exercise common law or equitable jurisdiction.

Possesses only statutory jurisdiction (s 19)

Judicial Review - (s 44 Administrative Appeals Tribunal 1975 (Cth), ADJRA, 39B Judiciary

Act 1903 (Cth))

Bankruptcy;

Intellectual Property; (Copyright Act 1968 (Cth), Designs Act 1906 (Cth), Patents Act

1990 (Cth), Trade Marks Act 1995 (Cth))

Native Title;

Taxation;

Competition and Consumer Act 2010 (Cth).

Limits on Federal Jurisdiction

Limited to ‘Matters’ – Can not ask federal courts for advisory or opinion judgements.

Federal Courts cannot be vested with state jurisdiction. ***

If it’s the litigation in a federal court, which involves states jurisdiction problems then the federal court does not have state’s jurisdiction because it is unconstitutional.

This is the decision in Re Wakim.

Re Wakim

Re Wakim; Ex parte McNally was a significant case decided in the High Court of Australia on 17 June

1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the

vesting of state companies law jurisdiction in the Federal Court.

https://en.wikipedia.org/wiki/Ex_parte#Australia

https://en.wikipedia.org/wiki/List_of_High_Court_of_Australia_cases

https://en.wikipedia.org/wiki/High_Court_of_Australia

https://en.wikipedia.org/wiki/Federal_Court_of_Australia




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Re Wakim involved a constitutional challenge to the cross-vesting scheme

The cross-vesting scheme involved:

Invested jurisdiction of each participating Ct in all of the others.

State and Territory Sup Cts, Fed Ct and Family Ct all participating

Allowed transfer between participating courts if (s 5);

2 related proceedings in two participating Ct and if it is in the interests of justice

transfer

if it is in the interests of justice transfer

PROBLEM! Nowhere in ChIII Constitution does it say that State jurisdiction can go onto Federal

Crts.

SECOND PROBLEM: Commercial matters that went sour often had regulators and liq’d using

cross-vested proceedings. Similarly parties in family matters involving property.

This meant it was attractive to argue the unconstitutionality of a cross-vested decision as a

means of collateral attack.

Gould v Brown (1998) 115 ALR 395

warning shot that cross-vesting was in danger

HC split 3-3, Brennan CJ’s votes makes a statutory majority ruling cross-vesting valid.

1999 New High Court bench Brennan CJ and Toohey J retired - Gleeson CJ, Hayne and Callinan JJ

on the bench

Constitutionality of cross-vesting bought up again in Re Wakim; Ex parte McNally (1999) 198 CLR

511

4 cases heard together - Re Wakim

6-1 majority in favour of striking down cross-vesting legislation as unconstitutional.

Gummow and Hayne JJ lead judgment




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CHIII concerned federal judicial power

CHIII only mentions Fed Parli as conferring judicial power on Fed Courts

Fed Parliament doesn't have a legislative power to deal with State jurisdiction.

Similarly States and Commonwealth can not act together to implicitly amend

constitution

Kirby dissent follows majority in Gould v Brown

Wider reading of CHIII

Explicit recognition of value of cross-vesting scheme and inconvenience if made

unconstitutional

saw Constitutional basis for cooperative federalism

OUTCOME of Re Wakim

o State Cross vesting Acts in so far as purported to vest state jurisdiction in Fed Cts -

invalid

o Other parts of cross-vesting scheme (State State, FedState) left intact

o Federal Courts (State Jurisdiction) Act 1999 in each state retrospectively validates cross-

vested decisions of Fed Cts as if decision was of the State Supreme Court.

o Constitutionally, signaled a strict literal interpretation of the CHIII by HC

o Also signaled that HC would declare unconstitutional legislation regardless of

consequences

Territorial Jurisdiction

Court must have 'territorial' or in personam jurisdiction over a defendant.

Traditionally this means the defendant must be in the jurisdiction

Hence the old trick of fleeing the jurisdiction.




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However, it is no-longer that simple.

Three bases on which this jurisdiction can be asserted:

presence of defendant in jurisdiction;

voluntary submission by defendant to jurisdiction; or

statutory extension of jurisdiction

States and Territories having an Australia-wide in personam jurisdiction by application of

the Service and Execution of Process Act 1992 (Cth) (see r 123 UCPR)

in personam jurisdiction outside Australia – where a matter is brought in a Queensland

court, service on a defendant outside Australia will be valid so long as there is a link

between the defendant and Queensland: see r 124 UCPR.

This 'long-arm' jurisdiction was confirmed by the High Court (see Dow Jones & Company

Inc v Gutnick).

We will consider this further next week when we look at the rules concerning service.

In the meantime think of the practicality of litigating a foreign entity with only off-shore

assets in a country that does not have a treaty with Australia to enforce Australian civil

judgments.

Dealing with Jurisdiction Conflict

Given the overlapping jurisdictions questions often arise as to the more appropriate forum.

Classic examples:

matrimonial property in Family Court matters

Hire car accident in NT, Driver from WA, Car hired in SA from a company headquartered

in NSW

Post-Wakim this is how things work:

State-State disputes – Cross-vesting scheme




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Litigation in State court involving federal jurisdiction – Cross-vesting scheme

Litigation in Federal Court involving state jurisdiction – Associated jurisdiction

Cross-Vesting Jurisdiction

Cross-Vesting in Practice

The aim of the cross-vesting scheme is to maintain the jurisdiction of State and federal

court but to enable a transfer to another, or appropriate, court in a proper case so all issues

can be determined in a single proceeding. Cross-vesting applies only to State Supreme

Courts and within limits of federal jurisdiction, to the Federal Court and the Family Court.

Cross-vesting applies to civil proceedings only, not criminal proceedings.

s 5 Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld) (Same Act title and date Cth and other

States and Territories)

2 related proceedings in two participating Court and if it is in the interests of justice

transfer to most appropriate Court

if it is in the interests of justice transfer to most appropriate

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 725-729

This case considered the issue of cross-vesting and whether or not proceedings which were commended in the NSW Supreme court should be transferred to the Queensland Supreme court under the cross-vesting legislation.

pragmatic approach to determining appropriate Court and interests of justice.

Only applies Supreme Court of Qld - UCPR r 52(2).




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52 Application of pt 7

(1) This part applies to a proceeding to which the cross-vesting laws apply.

(2) This part applies only to the Supreme Court.

Can start without leave but must have the reliance on cross-vesting laws clear on the claim r 53.

53 Starting proceedings

(1) A proceeding in which a party relies on the cross-vesting laws must be started under this part.

(2) However, if there is doubt or difficulty about how a proceeding should be started, the court,

on application to it, may give directions.

(3) An application for directions may be made without notice to another person.

(4) A party who relies on the cross-vesting laws must include in the process by which the

laws are invoked a statement identifying each claim or ground of defence about which the

cross-vesting laws are invoked.

(5) A failure to comply with subrule (4) does not invalidate the process.

(6) If a party who has not complied with subrule (4) wishes to invoke the cross-vesting laws, the

court, on application by the party, may give directions.

r 56 once claim and intention of notice to defend have been served, application for directions -

allows Ct to set up special directions for the trial.

56 Directions

(1) The first party to invoke the cross-vesting laws must make an application for directions and




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serve it on all other parties.

(2) If a plaintiff is required to make the application for directions, the plaintiff must make and

serve the application within 7 days after being served with the first notice of intention to defend.

(3) If a defendant is required to make the application for directions, the defendant must make and

serve the application within 7 days after service of the process invoking the cross-vesting laws.

(4) If a proceeding is transferred to the court from another court, the party who started the

proceeding must, within 14 days after the date of the order transferring the proceeding, make and

serve an application for directions.

(5) If the party does not comply with subrule (4), another party may make and serve the

application or the court may call the parties before it on its own initiative.

(6) On the hearing of the application for directions, the court must give a direction or make a

decision about the conduct of the proceeding that the court considers appropriate.

(7) The court may, at the trial or hearing of the proceeding, vary an order or decision made on the

application for directions.

r 59 provides for directions if proceedings are transferred to Sup Ct.

59 Transfer to court if no proceeding pending

(1) This rule applies if a proceeding is removed to a court under section 8 of the cross-vesting

laws.

(2) The court may immediately on the removal give a direction, make a decision or direct the

parties to take a step in the proceeding the court considers appropriate.

(3) The court's powers under subrule (2)—

(a) are in addition to the court's powers under rule 56; and

(b) include power to give directions that could have been given by the court or tribunal

from which the proceeding was removed.




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Therefore ,cross-vesting allows the Supreme Court of Queensland to

Exercise the jurisdiction of other State Supreme Court

Send a matter to a more appropriate State Supreme Court

Exercise the jurisdiction of the Federal Court

Wakim held that vesting of federal jurisdiction in State Cts valid (Of course it did

– allowed for by s 77(iii) of Constitution!)

But ‘special federal matters’ not usually exercisable (s 6)

‘special federal matters’ defined in s 3(1) of Cth Cross-vesting Act; Judicial

Review of Cth officers, part IV Competition and Consumer Act

Federal Court Exercising State Jurisdiction

Pre-Wakim no problems

Now only can rely on the old common law rule of associated jurisdiction.

Stated in relation to Federal Court in Phillip Morris v Adam P Brown Male Fashions (1981) 148

CLR 170.

Federal Court has 'associated jurisdiction' to resolve incidental state law issues within a

federal law matter

But they must be incidental

IE CL action of passing off was incident to a pleading under s 52 of TPA

PROBLEM! What if the dispute is 50%/50%?

SOLUTION! Cross-vesting scheme – Oops HC declared that part of it unconstitutional. Stuck in

the Supreme Court

Documents

Civil Procedure Semester 1, 2017 by Adrienne Park Civil ... · Civil Procedure Prior to Proceedings This summary note was written and updated for the purpose of preparing online quiz