- 14 -
44 I also reject the submission that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) was intended only to facilitate hearing by the Federal Court of a matter transferred to it and it was not intended to create a new source of original jurisdiction. The respondent placed reliance on the preamble, paragraph (b). In my opinion the language of the Act shows that the Act was intended and, for the Australian Capital Territory, continues to be intended to confer jurisdiction on the Federal Court even where, as here, there has not been a transfer of proceedings. I refer to the balance of the preamble and to the terms of s 5 in contrast to the terms of s 9. I refer also to the structure of s 9(3) dealing separately, in paragraphs (a) and (b), with the jurisdiction conferred on the Court by reference to the content of a territory law relating to cross-vesting and the hearing and determination of proceedings transferred under such a provision. See also the Explanatory Memorandum to the Jurisdiction of Courts (CrossVesting) Bill 1986 at paragraph 5; and Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713, 724 and 725–6.
45 In my view this analysis establishes the jurisdiction of the Federal Court to hear and determine the substantive defamation proceedings. It follows that the interlocutory application should be dismissed.
46 Because it is not necessary to decide other jurisdictional questions involving the Constitution the Court should not do so: see ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [141] and the authorities there cited. In particular, I do not consider whether disputes under Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) or the common law as it applies in the Australian Capital Territory otherwise arise under laws made by the Parliament within s 76(ii) of the Constitution: compare O'Neill v Mann (2000) 101 FCR 160.
Conclusion and orders
47 For these reasons I would dismiss the respondent's interlocutory application dated 23 December 2011, with costs. The proceedings should be listed before the docket judge on a date to be fixed. An issue arose under r 40.13 of the Federal Court Rules 2011 as to whether the Court should order that the costs of this interlocutory application be taxed immediately. In my view, such an order should be made given the discrete nature of the jurisdictional question raised by the respondent's interlocutory application.
