determination by one court of federal and State matters in appropriate cases; and

(c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

BE IT THEREFORE ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title

1. This Act may be cited as the Jurisdiction of Courts (Cross-vesting) Act 1987.

Commencement

2. This Act shall come into operation on a day to be fixed by Proclamation.

Interpretation and application

3. (1) In this Act, unless the contrary intention appears—

“Family Court” means the Family Court of Australia;

“Federal Court” means the Federal Court of Australia;

“Full Court”, in relation to a Supreme Court of a State, includes any court of the State to which appeals lie from a single judge of that Supreme Court;

“judgment” means a judgment, decree or order, whether final or interlocutory;

“party”, in relation to a proceeding, includes a person who intervenes in the proceeding;

“proceeding” does not include a criminal proceeding;

“special federal matter” means—

(a) a matter arising under Part IV (other than section 45d or 45e) of the Trade Practices Act 1974;

(b) a matter involving the determination of questions of law on appeal from a decision of, or of questions of law referred or stated by, a tribunal or other body established by an Act or a person holding office under an Act, not being a matter for determination in an appeal or a reference or case stated to the Supreme Court of a State or Territory under a law of the Commonwealth that specifically provides for such an appeal, reference or case stated to such a court;

(d) a matter arising under section 32 of the National Crime Authority Act 1984; or

(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39b of the Judiciary Act 1903,

being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction;

“State” includes the Northern Territory;

“State Family Court”, in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 applies by virtue of a Proclamation made under sub-section 41 (2) of that Act;

“Territory” does not include the Northern Territory.

(2) A reference in this Act, other than a reference in sub-section 4 (1), 5 (3) or 7 (4), to the Supreme Court of a State includes, if there is a State Family Court of that State, a reference to that State Family Court.

(3) This Act extends to every external Territory.

Additional jurisdiction of certain Courts

4. (1) Where—

(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter,

then—

(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or

(d) in the case of the Supreme Court of a Territory (including the Northern Territory)—jurisdiction is conferred on that court with respect to that matter.

(2) Where—

(a) the Supreme Court of a Territory has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) the Federal Court, the Family Court or the Supreme Court of a State or of another Territory would not, apart from this section, have jurisdiction with respect to that matter,

jurisdiction is conferred on the court referred to in paragraph (b) with respect to that matter.

(3) Where a proceeding is transferred to the Federal Court, the Family Court or a State Family Court of a State, that court has, by virtue of this sub-section, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this sub-section.

(4) This section does not apply to a matter arising under the Conciliation and Arbitration Act 1904 or under section 45d or 45e of the Trade Practices Act 1974.

Transfer of proceedings

5. (1) Where—

(a) a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in the Supreme Court of a State or Territory (in this sub-section referred to as the “first court”); and

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court;

(ii) having regard to—

(a) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Family Court;

(b) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,

the first court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.

(2) Where—

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to—

(a) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

(b) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-sub-paragraph (a) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

(3) Where—

(a) a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in the Supreme Court of a State or the State Family Court of that State (in this sub-section referred to as the “first court”); and

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the other of the courts referred to in paragraph (a) and it is more appropriate that the relevant proceeding be determined by that other court;

(ii) having regard to—

(b) the interests of justice,

it is more appropriate that the relevant proceeding be determined by the other of the courts referred to in paragraph (a); or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the other of the courts referred to in paragraph (a),

the first court shall transfer the relevant proceeding to that other court.

(4) Where—

(a) a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in the Federal Court or the Family Court (in this sub-section referred to as the “first court”); and

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to—

(b) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-sub-paragraph (a) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory,

the first court shall transfer the relevant proceeding to that Supreme Court.

(5) Where—

(a) a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in the Federal Court or the Family Court (in this sub-section referred to as the “first court”); and

(b) it appears to the first court that—

(ii) it is otherwise in the interests of justice that the relevant proceeding be determined by the other of the courts referred to in paragraph (a),

the first court shall transfer the relevant proceeding to that other court.

(6) Where—

(a) a court (in this sub-section referred to as the “first court”) transfers a proceeding to another court under a law or laws relating to cross-vesting of jurisdiction; and

(b) it appears to the first court that—

(i) there is another proceeding pending in the first court that arises out of, or is related to, the first-mentioned proceeding; and

(ii) it is in the interests of justice that the other proceeding be determined by the other court,

the first court shall transfer the other proceeding to the other court.

(7) A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.

(8) A person who is entitled to practise as a barrister or a solicitor, or as both a barrister and a solicitor, in a court has, if a proceeding (in this sub-section referred to as the “transferred proceeding”) in that court is transferred to another court under a law or laws relating to cross-vesting of jurisdiction, the same entitlement to practise in relation to:

(a) the transferred proceeding; and

(b) any other proceeding out of which the transferred proceeding arises or to which the transferred proceeding is related, being another proceeding that is to be determined together with the transferred proceeding;

in the other court that the person would have if the other court were a federal court exercising federal jurisdiction.

Special federal matters

6. (1) Where a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter, that Supreme Court shall transfer the proceeding to the Federal Court unless that Supreme Court makes an order that the proceeding be determined by that Supreme Court.

(2) The Supreme Court of a State or Territory shall not make an order under sub-section (1) that the court determine a proceeding unless it appears

to that Supreme Court that, by reason of the particular circumstances of the case—

(a) it is not appropriate that the proceeding be transferred to the Federal Court; and

(b) it is appropriate that that Supreme Court determine the proceeding.

(3) Where the Supreme Court of a State or Territory makes an order under sub-section (1) in relation to a proceeding, it is the duty of the court not to proceed to determine the proceeding until the court is satisfied that—

(a) a notice in writing stating that the order has been made and specifying the nature of the special federal matter for determination in the proceeding has been given to the Attorney-General; and

(b) a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question whether action should be taken under sub-section (7) in relation to the proceeding.

(4) For the purposes of this section, the Supreme Court of a State or Territory in which a proceeding referred to in sub-section (1) is pending—

(a) may adjourn the proceeding for such time as the court thinks necessary and may make such order as to costs in relation to an adjournment as it thinks fit; and

(b) may direct a party to the proceeding to give a notice in accordance with sub-section (3).

(5) The Attorney-General may authorise the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a proceeding under this section, under a corresponding provision of a law of a State or under this section and under such a provision.

(6) Nothing in this section prevents the Supreme Court of a State or Territory granting urgent relief of an interlocutory nature where it is in the interests of justice to do so.

(7) The Attorney-General may request the Supreme Court of a State or Territory in which a proceeding referred to in sub-section (1) is pending to transfer the proceeding to the Federal Court and, where such a request is made, that Supreme Court shall transfer the proceeding to the Federal Court.

(8) Where, through inadvertence, the Supreme Court of a State or Territory determines a proceeding of the kind referred to in sub-section (1) without—

(a) the court making an order under that sub-section that the proceeding be determined by that court; or

(b) a notice in accordance with sub-section (3) being given to the Attorney-General in relation to the proceeding,

nothing in this section invalidates the decision of that court.

(9) This section does not apply to a proceeding by way of an appeal that is instituted in the Full Court of the Supreme Court of a State or Territory if—

(a) the court the decision of which is the subject of the appeal had made an order under sub-section (1) in relation to the special federal matter; and

(b) the Attorney-General did not request the court referred to in paragraph (a) to transfer the proceeding to the Federal Court.

Institution and hearing of appeals

7. (1) An appeal shall not be instituted from a decision of a single judge of the Federal Court or the Family Court to the Full Court of the Supreme Court of a State or Territory.

(2) An appeal shall not be instituted from the Federal Court or the Family Court to the other of those courts.

(3) Where it appears that the only matters for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory are matters other than matters arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by, the Full Court of the Supreme Court of that State or Territory.

(4) An appeal shall not be instituted from a decision of a court of summary jurisdiction of a State to the Supreme Court of the State if an appeal lies from that decision to the State Family Court of the State.

(5) Subject to sub-sections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which sub-section (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by—

(a) the Full Court of the Federal Court or of the Family Court, as the case requires; or

(b) with special leave of the High Court, the High Court.

(6) A proceeding by way of an appeal from a decision of a judge of a State Family Court, being a proceeding involving the determination of—

(a) a matter arising under an Act specified in the Schedule; and

(b) another matter,

may be dealt with as if no matter for determination in the proceeding were a matter arising under an Act specified in the Schedule.

(7) Where—

(a) the Full Court of the Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and

(b) before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which sub-section (5) applies,

the Court shall, unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding to the Full Court of the Federal Court or of the Family Court, as the case requires.

(8) Where the Full Court of the Supreme Court of a State or Territory—

(a) determines a proceeding to which sub-section (5) applies as mentioned in sub-section (7); or

(b) through inadvertence, determines a proceeding to which sub-section (5) applies,

nothing in this section invalidates the decision of that court.

Orders by Supreme Court of a Territory

8. (1) Where—

(a) a proceeding (in this sub-section referred to as the “relevant proceeding”) is pending in—

(i) a court, other than the Supreme Court, of a Territory; or

(ii) a tribunal established by or under a law of a Territory; and

(b) it appears to the Supreme Court of that Territory that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court, the Supreme Court of a State or the Supreme Court of another Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court of that first-mentioned Territory; or

(ii) an order should be made under this sub-section in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court,

the Supreme Court of that first-mentioned Territory may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to that Supreme Court.

(2) Where an order is made under sub-section (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the court to which it was removed.

(3) Where a proceeding is removed to a court in accordance with an order made under sub-section (1), that court may, if the court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed.

Exercise of jurisdiction pursuant to cross-vesting laws

9. (1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross-vesting of jurisdiction.

(2) The Federal Court, the Family Court or the Supreme Court of a Territory may—

(a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and

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

Transfer of matters arising under Division 1 or 1a of Part V of the Trade Practices Act

10. Where—

(a) a proceeding is pending in the Federal Court, the Family Court or the Supreme Court of a State or Territory;

(b) a matter for determination in the proceeding is a matter arising under Division 1 or 1a of Part V of the Trade Practices Act 1974;

(d) the proceeding is not a proceeding by way of an appeal from a judgment of a court; and

(e) a court of a State or Territory, other than the Supreme Court of that State or Territory, has jurisdiction with respect to all of the matters for determination in the proceeding,

the court referred to in paragraph (a) may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the court referred to in paragraph (e).

Conduct of proceedings

11. (1) Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of a State relating to cross-vesting of jurisdiction:

(a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);

(b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that other State or Territory; and

(c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory.

(2) The reference in paragraph (1) (a) to the State or Territory in which the court is sitting is, in relation to the Federal Court or the Family Court, a reference to the State or Territory in which any matter for

determination in the proceeding was first commenced in or transferred to that court.

(3) Where a proceeding is transferred or removed to a court (in this sub-section referred to as the “transferee court”) from another court (in this sub-section referred to as the “transferor court”), the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court.

Orders as to costs

12. Where a proceeding is transferred or removed to a court, that court may make an order as to costs that relate to the conduct of the proceeding before the transfer or removal if those costs have not already been dealt with by another court.

Limitation on appeals

13. An appeal does not lie from a decision of a court—

(a) in relation to the transfer or removal of a proceeding under this Act; or

(b) as to which rules of evidence and procedure are to be applied pursuant to sub-section 11 (1).

Enforcement and effect of judgments

14. (1) A judgment of the Federal Court or the Family Court that is given, in whole or in part, in the exercise of jurisdiction conferred by a law or laws relating to cross-vesting of jurisdiction is enforceable in a Territory as if the judgment had been given entirely in the exercise of the jurisdiction of that court apart from any such law.

(2) A judgment of the Supreme Court of a Territory that is given, in whole or in part, in the exercise of jurisdiction conferred by a law or laws relating to cross-vesting of jurisdiction is enforceable in that Territory as if the judgment had been given entirely in the exercise of the jurisdiction of that court apart from any such law.

(3) Where—

(a) a provision of a law of the Commonwealth or of a Territory (not being a law relating to the enforcement of judgments) refers to a thing done by the Federal Court, the Family Court or the Supreme Court of that Territory; and

(b) that thing is done by another court in the exercise of jurisdiction conferred by this Act,

the reference in that provision to the Federal Court, the Family Court or the Supreme Court of that Territory, as the case may be, shall be read as a reference to that other court.

Construction of Act to be subject to Constitution

15. This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that if this Act would, but for this section, have been construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.

Suspension or cessation of operation of Act

16. (1) Subject to sub-section (2), the Governor-General may, if a Proclamation has not been made under sub-section (4), by Proclamation, declare that the operation of this Act is suspended from a day (being a day not earlier than 3 years after the commencement of this Act) specified in the Proclamation and, where such a Proclamation is made, this Act ceases to be in force from that day until a Proclamation is made under sub-section (3) revoking the first-mentioned Proclamation.

(2) The Governor-General shall not make a Proclamation under sub-section (1) having effect from a particular day unless the Governor-General is satisfied that the Attorney-General has given notice of his or her intention to seek the making of such a Proclamation to each State (other than a State in relation to which a Proclamation under sub-section (5) has been made) not less than 6 months before that day.

(3) Where the Governor-General has made a Proclamation under sub-section (1), the Governor-General may, by Proclamation, revoke the first-mentioned Proclamation.

(4) Where the Governor-General is satisfied that State Acts relating to cross-vesting of jurisdiction are not effective to confer jurisdiction of the Supreme Courts of the States on the Federal Court or the Family Court, the Governor-General may, by Proclamation, declare that this Act shall, on a day specified in the Proclamation, cease to be in force and, where such a Proclamation is made, this Act ceases to be in force on that day.

(5) Where the Governor-General is satisfied that an Act of a particular State relating to cross-vesting of jurisdiction has been repealed, rendered inoperative, suspended or altered in a substantial manner, the Governor-General may, by Proclamation, declare that this Act shall, on a day specified in the Proclamation, cease to be in force in relation to that State and, where such a Proclamation is made, this Act ceases to be in force in relation to that State on that day.

(6) Where—

(a) the Governor-General has made a Proclamation under sub-section (5) in relation to a State; and

(b) the Governor-General is satisfied that there is in force an Act of that State relating to cross-vesting of jurisdiction, being an Act in terms substantially corresponding to the terms of this Act,

the Governor-General may, by Proclamation, declare that this Act again applies in relation to that State from a day specified in the Proclamation and, where such a Proclamation is made, this Act applies in relation to that State on and after that day.

–––––––––––––

SCHEDULE Section 7

Advance Australia Logo Protection Act 1984

Bankruptcy Act 1966

Commonwealth Electoral Act 1918

Designs Act 1906

Family Law Act 1975

Health Insurance Act 1973

Liquid Fuel Emergency Act 1984

Patents Act 1952

Petroleum Retail Marketing Franchise Act 1980

Referendum (Machinery Provisions) Act 1984

Shipping Registration Act 1981

Trade Marks Act 1955

[Minister’s second reading speech made in—

House of Representatives on 22 October 1986

Senate on 1 April 1987]