The Queen v Gray; Ex parte Marsh

157 CLR 351
1985 WL 514554 (HCA)
62 ALR 17
59 ALJR 804
11 IR 333

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(Decision by: Dawson J)

The Queen
vGray; Ex parte Marsh

Court:

Judges: Gibbs CJ
Mason J
Wilson J
Brennan J
Deane J
Dawson J

Legislative References:
Conciliation and Arbitration Act 1904 (Cth) - 4(1); Part IX; 159(4)(a)
Federal Court of Australia Act 1976 - 5(2)
Judiciary Act 1903 (Cth) - 33(1)(b)
Family Law Act 1975 (Cth) - 21(2)

Other References:
de Smith's Judicial Review of Administrative Action, 4th ed. (1980)
Whitmore and Aronson, Review of Administrative Action (1978)
The Practice of Law In All Its Departments, 1st ed. (1833), vol. II

Hearing date: 17 October 1985. Perth
Judgment date: 18 June 1985

Canberra

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Decision by:
Dawson J

The appeal in this matter to the Full Court of the Federal Court was incompetent for the reasons given by the Chief Justice. Accordingly, special leave to appeal to this Court should be refused.

I also agree with the Chief Justice that the matters complained of do not constitute irregularities within the meaning of Pt IX of the Conciliation and Arbitration Act 1904 (Cth). The question remains whether the orders nisi for prohibition or certiorari should be made absolute.

Section 5(2) of the Federal Court of Australia Act 1976 (Cth) makes the Federal Court a superior court of record but, as I have remarked elsewhere, such a legislative assertion cannot be taken at face value when it is made in relation to a federal court created pursuant to the powers vested in the Federal Parliament by Ch. III of the Constitution: D.M.W. v. C.G.W. ^[82] . A federal court is necessarily a court of limited jurisdiction. Its powers can be no wider than is permitted by ss. 75 and 76 of the Constitution and when jurisdiction is sought to be conferred under s. 76(ii) in any matter arising under any laws made by Parliament, the confines of the legislative powers of the Parliament provide a further limitation.

No doubt it is within the competence of Parliament to bestow upon a federal court the attributes of a superior court to the extent that the Constitution permits. That is all that s. 5(2) of the Federal Court of Australia Act can do in relation to the Federal Court. Clearly enough those attributes include the power to punish for contempt (although the Federal Court has express power to punish contempts under s. 31 of its Act) and the protection of officers of the Court in the execution of void orders: see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section ^[83] , per Latham C.J. There is more difficulty in extending some of the other characteristics of a superior court to a court, such as the Federal Court, created under Ch. III of the Constitution.

A superior court is a court of general jurisdiction, which does not necessarily mean that it has unlimited jurisdiction but that it will be presumed to have acted within jurisdiction: see Peacock v. Bell and Kendal ^[84] . It is because a superior court is presumed to have acted within jurisdiction that it is said that, in general, prohibition does not lie to a superior court, even though its jurisdiction is limited. Nevertheless, prohibition does lie to a superior court of limited jurisdiction if the want of jurisdiction is apparent: R. v. Chancellor of St. Edmundsbury and Ipswich Diocese; Ex parte White ^[85] ; Mayor of the City of London v. Cox ^[86] ; James v. South Western Railway Co. ^[87] .

Section 5(2) of the Federal Court of Australia Act cannot operate to create any presumption that the Federal Court acts within its jurisdiction when that jurisdiction is dependent upon the existence of facts which also mark the limits of the constitutional power to create the jurisdiction. Any proceedings in the Federal Court must remain open to collateral attack in this Court upon the basis that this Court alone can conclusively determine the existence or otherwise of those facts: Reg. v. Federal Court of Australia; Ex parte W.A. National Football League ^[88] . Nor, it seems to me, can the declaration in s. 5(2) of the Federal Court of Australia Act that the Federal Court is a superior court exclude prohibition even though no question of constitutional competence arises. The proposition, ordinarily applicable to a superior court, that all matters are within jurisdiction unless the contrary is shown, cannot, I think, apply to the Federal Court. Section 75(v) of the Constitution gives to the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Whatever the dignity and status conferred upon the Federal Court by s. 5(2) of its Act, it does not displace s. 75(v) nor does it remove the judges of the Court from the category of officers of the Commonwealth: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. ^[89] Moreover, s. 33(1)(b) of the Judiciary Act 1903 (Cth) makes explicit the power of the High Court to make orders or direct the issue of writs requiring any court to abstain from the exercise of any federal jurisdiction which it does not possess.

If, however, the facts upon which a federal court's jurisdiction depends do not mark the limits of the power of Parliament to confer jurisdiction upon it, Parliament may entrust the finding of those facts to the federal court itself. In that event the court will not be acting outside jurisdiction in finding those facts and, even if it finds them wrongly, prohibition will not lie because prohibition is a remedy against a wrongful assumption of jurisdiction and not a remedy against an erroneous decision made by a court in the exercise of a jurisdiction which it possesses: see Reg. v. Federal Court of Australia; Ex parte W.A. National Football League ^[90] , per Gibbs J.

As Dixon J. so clearly pointed out in Parisienne Basket Shoes Pty. Ltd. v. Whyte ^[91] , even an inferior court may be empowered to determine the facts upon the existence of which its jurisdiction depends. Prohibition will not then lie and ordinarily appeal will be the means to correct a wrong determination. Of course, if the legislature does make the jurisdiction of a court contingent upon the actual existence, as opposed to the court's determination, of a state of facts, then the proceedings of the court will remain susceptible to collateral attack by way of prohibition. But, as Dixon J. observed, such a situation is so inconvenient that legislation will be construed so as to avoid it unless it is clearly intended.

The legislation in this case is the Conciliation and Arbitration Act, Pt IX of which deals with disputed elections in organizations under the Act. An application for an inquiry may be referred by the Industrial Registrar to the Federal Court and if the court finds that an irregularity has occurred it may make one or more of certain specified orders. The jurisdiction to make an order is thus dependent upon a finding of an irregularity but the power to make such a finding is reposed in the court. In other words, the court is in this case entrusted by the legislation with the function of finding for itself the facts upon which its jurisdiction depends and, since no question of constitutional power is involved, prohibition will not lie in respect of its performance of that function. In taking the view that the facts alleged were capable of supporting a finding of an irregularity, the court was not acting in excess of jurisdiction although it was, I think, in error. Whether or not a finding of an irregularity was a condition precedent to the court's ultimate exercise of jurisdiction, the finding which the court did make did not take it outside the limits set by the legislation for its inquiry or embark it upon an exercise which was outside the area envisaged by the legislation: see Anisminic Ltd. v. Foreign Compensation Commission ^[92] . Within those limits, the jurisdiction which the Court was given was a jurisdiction to proceed upon its own view of the facts and law, which is what it did or proposed to do. I agree with what Mason J. has to say upon this aspect of the matter.

Certiorari as well as prohibition was, however, claimed. That raises different considerations. As the judgment of Wrottesley L.J. in R. v. Chancellor of St. Edmundsbury and Ipswich Diocese; Ex parte White ^[93] shows, certiorari does not lie to correct the errors of superior courts (see also R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section ^[94] ) and one question which arises is whether Parliament has, by declaring the Federal Court to be a superior court, excluded certiorari as a means of challenging its decisions. Section 75(v) of the Constitution does not stand in the way because it does not extend to certiorari and clearly recognizes prohibition as the remedy for a court acting in excess of its jurisdiction.

The question might admit of an easier answer were it not for the decisions of this Court in Pitfield v. Franki ^[95] , Reg. v. Cook; Ex parte Twigg ^[96] and Reg. v. Ross-Jones; Ex parte Green ^[97] . In Pitfield v. Franki, both prohibition and certiorari were sought in relation to a decision of the Deputy Industrial Registrar of the Commonwealth Conciliation and Arbitration Commission to register an organization which was ultimately held not to be an association of employees in or in connexion with any industry within the meaning of the Conciliation and Arbitration Act. This Court had original jurisdiction to grant prohibition under s. 75(v) of the Constitution. The alternative remedy of certiorari was, however, granted. The explanation proffered by Mason J. in Reg. v. Marshall; Ex parte Federated Clerks' Union of Australia ^[98] was that the case concerned the constitutional limits under s. 51(xxxv) of the Constitution of the authority of the Deputy Industrial Registrar to register an organization and this circumstance "possibly taken in conjunction with a bona fide claim for prohibition, gave the Court jurisdiction, despite the absence of any reference to certiorari in s. 75(v) of the Constitution". This explanation was expanded by Gibbs J. in Reg. v. Cook; Ex parte Twigg ^[99] where he said:

"In that case [i.e., Pitfield v. Franki], as in the present, prohibition and certiorari were claimed as alternative remedies, and one possible explanation of the decision is that once the Court was seized of jurisdiction because prohibition was sought against an officer of the Commonwealth, not merely colourably, but in good faith, the Court, in the exercise of that jurisdiction, had power, under s. 31 of the Judiciary Act, to grant the more appropriate remedy of certiorari. It should be added that the case may also have been regarded as one involving the interpretation of the Constitution."

However, in Reg. v. Cook; Ex parte Twigg this Court granted certiorari to bring up and quash a conviction for contempt in the Family Court. Both prohibition and certiorari were claimed and, of course, so far as the former was concerned, jurisdiction was to be found in s. 75(v) of the Constitution. The interpretation of the Constitution was not, however, involved and no reference appears to have been made to the status accorded to the Family Court by s. 21(2) of the Family Law Act 1975 (Cth) as a superior court of record. Certiorari was a convenient remedy in that case because it enabled the Court to expunge a wrongful conviction rather than merely restrain further proceedings upon it, but the question remains to my mind whether, in view of s. 21(2) of the Family Law Act, certiorari lay at all. That question was not considered and the basis of the decision was indicated by Aickin J. ^[100] . He said:

"For the reasons which I have indicated I find it necessary in the present case to go at least as far as saying that the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide."

Similarly, in Reg. v. Ross-Jones; Ex parte Green ^[101] , no question involving the interpretation of the Constitution arose. Both prohibition and certiorari directed to the Family Court were granted upon the authority of Reg. v. Cook; Ex parte Twigg ^[102] but no examination of the jurisdictional basis for the order for a writ of certiorari was made.

There is no question of constitutional competence in this case and it seems to me that, even accepting the authorities to which I have referred, certiorari as a remedy could be attracted only by the availability of prohibition as a remedy in the exercise of the original jurisdiction of this Court under s. 75(v) of the Constitution. As I have already indicated, it is my view that prohibition directed to the Federal Court is not available in this case and accordingly I think that both the orders nisi for prohibition and certiorari should be discharged. I find it unnecessary to give any final answer to the question whether certiorari is excluded as an available remedy by s. 5(2) of the Federal Court of Australia Act.