Edwards v Santos Ltd
[2011] HCA 8(2011) 242 CLR 421
(2011) 85 ALJR 464
(2011) 275 ALR 489
(Decision by: Hayne J)
Edwards
vSantos Ltd
Judges:
French CJ
Gummow J
Hayne JHeydon J
Crennan J
Kiefel J
Bell J
Legislative References:
Federal Court of Australia Act 1976 - s 31A(2)
Judiciary Act 1903 (Cth) - s 32
Judiciary Act 1903 (Cth) - s 26; s 32
Federal Court of Australia Act 1976 (Cth) - s 33(4B)(a)
Native Title Act 1993 (Cth) - s 253
Judiciary Act 1903 (Cth) - s 39B(1A)(c)
Federal Court of Australia Act 1976 (Cth) - s 33(4B)(a)
Civil Procedure Act 2005 (NSW) - s 98(6)(c)
Supreme Court Act 1970 (NSW) - s 76(2)(c)
Supreme Court Rules 1970 (NSW) - Pt 52, r 7
Case References:
-
Judgment date: 30 March 2011
Decision by:
Hayne J
[6] I agree that the plaintiffs are entitled to certiorari to quash the orders made at first instance in the Federal Court of Australia (by Logan J) and the orders made on application for leave to appeal to the Full Court of that court. The costs of the proceedings in this court should follow the event. I do not agree that this court can make any order in substitution for the costs orders that were made in the Federal Court at first instance and on the application for leave to appeal.
[7] In Kirk v Industrial Court (NSW ), six members of this court held [1] that the Court of Appeal of the Supreme Court of New South Wales, exercising the original jurisdiction of that court, had power to quash orders of the Industrial Court of New South Wales but did not have power to make any order in place of the orders that had been quashed. For the reasons which led to the majority's conclusion in Kirk about the powers of the Court of Appeal, the same conclusion must be reached about the powers of this court.
[8] Because no appeal lies to this court against the refusal of the Full Court of the Federal Court to grant leave to appeal against the orders of Logan J, [2] the plaintiffs brought the present proceedings in the original jurisdiction of this court. The plaintiffs sought certiorari to quash the orders made in the Federal Court, and mandamus directing the Federal Court to hear and determine the proceedings the plaintiffs had instituted in that court. Because the plaintiffs claimed mandamus against officers of the Commonwealth, the action in this court was within its original jurisdiction under s 75(v) of the Constitution.
[9] The importance of the distinction between this court's appellate and original jurisdiction has been repeatedly emphasised in cases concerning the powers of the Court on appeal. In particular, the distinction between appellate and original jurisdiction is central to the reasoning which underpins the established doctrine of the court that further evidence will not be received on appeal. [3] The distinction between appellate and original jurisdiction is no less important when considering what orders this court can make in a matter where the court's jurisdiction is conferred by s 75(v).
[10] The plaintiffs submitted that this court's power to order the first, second and third defendants to pay the plaintiffs' costs of the proceedings in the Federal Court, at first instance and on application for leave to appeal to the Full Court, came from either ss 26 or 32 of the Judiciary Act 1903 (Cth) or some combination of the operation of those provisions. It is convenient to deal first with s 26.
[11] Section 26 of the Judiciary Act gives this court "jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction". No doubt, the enactment of s 26 recognised that, in England, "[c]osts in Courts of Common Law were not by Common Law at all, they were entirely and absolutely creatures of statute". [4] Be this as it may, s 26 of the Judiciary Act, in its terms, is directed to the awarding of costs in the particular matter that is "brought before the Court"; it is not concerned with the costs of matters other than the matter in this court.
[12] It is to be accepted, as noted in De L v Director-General, NSW Dept of Community Services (No 2 ), [5] that the power given by s 26 should not be narrowed. But in considering how s 26 is engaged in the present matter, it is also necessary to recognise that the matter in this court centred upon the claim by the plaintiffs that the Federal Court had, because of jurisdictional error, neglected to exercise jurisdiction conferred on it and that the plaintiffs were thus entitled to relief under s 75(v) of the Constitution, and associated relief.
[13] The matter in this court arose out of, but was distinct from, the controversy or matter that was before the Federal Court. The justiciable controversy in the Federal Court was whether the plaintiffs were entitled, as against the defendants in that court, to any of the declaratory or injunctive relief claimed in that court. In this court, the justiciable controversy was whether the Federal Court's orders disposing finally of the proceedings in that court were infirm on account of jurisdictional error. Unlike the case of committal for trial followed by trial, in which a single matter proceeds through more than one court, [6] and unlike the case in which this court's appellate jurisdiction is engaged, the "matter brought before the Court" here is distinct from the matter that was brought before the Federal Court. The distinction between the matters is emphasised by the difference in parties to the two proceedings. In this court, the relevant officers of the Commonwealth (here the Federal Court) are necessary parties. It is the combination of the identity of those parties as officers of the Commonwealth and the relief which is sought which founds this court's jurisdiction. In the Federal Court, the parties to the controversy were the plaintiffs and those parties who are the first three defendants in this court.
[14] The power given to this court by s 26 of the Judiciary Act is power to award costs in the matter before this court, not the matter that was before the Federal Court. Section 26 does not authorise the making of an order providing for the costs incurred in the matter in the Federal Court.
[15] Section 32 of the Judiciary Act gives the High Court power to grant complete relief in the exercise of its original jurisdiction and in any cause or matter pending before the court, whether originating in the court or removed into it from another court. Section 32 provides:
The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided.
[16] The certiorari to which the plaintiffs are entitled is granted in the exercise of the powers given by s 32 of the Judiciary Act. This is not a case in which the constitutional writ of mandamus should be ordered. Complete relief is granted to the plaintiffs by an order for certiorari (relief not mentioned in s 75(v)) without going on, pursuant to s 33(1)(a) or (e) of the Judiciary Act, to order the constitutional writ of mandamus to hear and determine the claim which the plaintiffs had made in the Federal Court.
[17] The certiorari to which the plaintiffs in this matter are entitled is certiorari to quash the orders made at first instance and in the Full Court of the Federal Court. Reference is made in Re McBain ; Ex parte Australian Catholic Bishops Conference [7] to some aspects of the history of the development in England of certiorari to quash and the relationship between the development of certiorari to quash and the writ of error. But as was pointed out in McBain , [8] the place which is now occupied by certiorari alongside the constitutional writs of prohibition and mandamus must be determined having close regard to the Australian constitutional context. In particular, in a matter of the present kind, where certiorari is directed to a superior court of record for jurisdictional error, it is not to be expected that immediate assistance will be gained by consideration of 19th century English practice in relation to certiorari.
[18] Recognising the force of that caveat, it is nonetheless relevant to notice that no English case was drawn to this court's attention in which any order for costs beyond the costs of the proceeding for certiorari had been ordered in a case where certiorari to quash had issued. And orders for the costs of proceedings in the court to which certiorari was directed were refused in the King's Bench, for want of power, in R v Passman [9] and R v Higgins . [10] Such later dicta as might be thought to touch upon the question [11] would also suggest that no order for costs wider than an order disposing of the costs of the proceedings in this court should be made. Nothing in the leading English practice works of the late 19th and early 20th centuries [12] suggests to the contrary. Rather, as was said in R v Northumberland Compensation Appeal Tribunal ; Ex parte Shaw : [13]
It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it.
Or, as the same point was put in Craig v South Australia , [14] certiorari "is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made " (emphasis added).
[19] Section 32 of the Judiciary Act does not give power to this court to exercise the powers that were exercisable by an officer of the Commonwealth whose decision is subject to the grant of constitutional writs under s 75(v) (or associated forms of relief like certiorari). That the relief in this case is to be directed to a court neither permits nor requires some different conclusion.
[20] By contrast, power to exercise those powers that were available to another court is given to the court, in the exercise of its appellate jurisdiction, by s 37 of the Judiciary Act. That section provides:
The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.
It is under this section that the court acts, in its appellate jurisdiction, when it modifies an order for costs made in an intermediate appeal court or gives that judgment for costs that ought to have been given in the first instance. And it is then the duty of those other courts to execute the High Court's judgment in the same manner as if it were a judgment of the intermediate or trial court concerned. The procedures and mechanisms of those other courts (for example, for taxing or fixing the amount to be allowed for costs) are thus engaged. No provision is made, whether in the Judiciary Act or otherwise, which enables this court, on granting relief under s 75(v) or associated relief, to make such order for costs as should have been made by Logan J at first instance or by the Full Court of the Federal Court. No provision is made, whether in the Judiciary Act or otherwise, which would engage the procedures and mechanisms of the Federal Court for fixing, pursuant to the order of this court, the amount to be allowed for the costs of proceedings in the Federal Court.