Case: DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226
Outcome: cited
Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]). 38 The right of appeal to the Full Court of the Court is conferred by the Act and the terms of the statutory grant determine the nature of the appeal 'and consequential matters' ( DJL v The Central Authority [40]) and those matters include 'the susceptibility of orders made by the Court in its appellate jurisdiction to re-opening after they have been entered ( DJL [40]). Although the Federal Court, as a court of broadly invested jurisdiction across the subject matter of the Commonwealth's legislative power, might find within its jurisdiction powers necessarily implied by reason of the conjunction of the statutory structure creating the Court, its role and sources of jurisdiction and the description of the Court as a superior Court of record and a court of law and equity, as compared with a Court of single or specific subject matter, the considerations at [45], [46] and [47] of DJL are, in my view, decisive of the power of the Court to re-open a judgment and orders of the Full Court especially having regard to s 73 of the Constitution and provisions in the Act conferring on the High Court a jurisdiction to hear and determine (s 33(1)) appeals from judgments of the Full Court with special leave of the High Court (s 33(3)). 39 The observations are these: 45 The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as 'a superior court of record'. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act . 46 A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution . Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution . 47 The Family Court is a federal court within the meaning of s 73(ii) of the Constitution . Thus, this Court has jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Family Court with such exceptions and subject to such regulations as the Parliament prescribes. An appeal lies from a decree of the Family Court exercising appellate jurisdiction by special leave of this Court (s 95(a)). ...