Case: McIntosh v National Australia Bank (1988) 17 FCR 482
Outcome: distinguished
The core of the respondent's argument is that the transfer of the proceeding is itself an exercise of jurisdiction in relation to the 'substantive proceeding'. In support of this submission the respondent relied on Gummow J's proposition that, 'To remit or transfer a proceeding is to exercise jurisdiction in respect of it'; McIntosh v National Australia Bank (1988) 17 FCR 482 at 483. I respectfully agree with this proposition, however, I do not accept that McIntosh is authority for the respondent's submission that because the FMC had no jurisdiction to quell the controversy between the parties, it had no jurisdiction to transfer it to the Federal Court. 18 McIntosh raised questions of constitutional power that do not arise here. It concerned a claim of contravention of s 52 of the Trade Practices Act 1974 (Cth) as well as other claims which included breach of fiduciary duty, negligence and breach of contract. The respondent in McIntosh had raised the question of whether the accrued jurisdiction of the Court had been attracted in respect of the non-s 52 claims and contended that any jurisdictional difficulty could be resolved by transferring the proceeding to the appropriate State court pursuant to s 86A of the Trade Practices Act . 19 Gummow J observed that it was an essential step in the respondent's submissions that the non-s 52 claims fell within s 86A because they were 'any other matter for determination in the proceeding'. His Honour commented that there was a difficulty in construing s 86A(1) as authorising a transfer of a matter in respect of which the Court had no jurisdiction. His Honour explained the difficulty thus: If that matter was not within the accrued jurisdiction, it would not fall within any of the heads in ss 75 and 76 of the Constitution (Cth). Then in its operation in such cases, s 86A(1) of the TP Act would not be a law defining the jurisdiction of this Court or investing any State court with federal jurisdiction ... If it were to be construed as suggested, s 86A(1) would go beyond the operation of a law within the scope of s 77 of the Constitution . The incidental power in s 51(xxxix) of the Constitution would not appear to support a law authorising a federal court to exercise jurisdiction (whether by transferring the proceedings or deciding them itself) in respect of matters outside federal jurisdiction ... 20 There are two points that I would like to make about the decision in McIntosh : first, the question was one of construction of s 86A(1) which provided for transfer of matters; second, Gummow J was persuaded that the proper construction of the section could not be that it authorised the transfers under consideration, because that construction would mean that the section was constitutionally invalid. 21 In this case the question is also one of construction of a transfer provision, namely s 39 of the Federal Magistrates Act . This section provides: (1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court. (2) The Federal Magistrates Court may transfer a proceeding under this section: (a) on the application of a party to the proceeding; or (b) on its own initiative. (3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to: (a) any Rules of Court made for the purposes of subsection 40(2); and (b) whether proceedings in respect of an associated matter are pending in the Federal Court; and (c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. ... (6) An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1). 22 The respondent points out that s 39 requires that there be a proceeding 'pending' in the FMC for the power of transfer to this Court to arise and submits that a proceeding cannot be 'pending' in a court that does not have jurisdiction in respect of it. This submission fails to take into account that while the Federal Magistrate did not have jurisdiction to review the Tribunal's decision, his Honour did have limited jurisdiction in respect of the proceeding. Mr Lloyd did not contend otherwise; in fact his submission was premised on the Federal Magistrate having jurisdiction to decide if his jurisdiction extended to the substantive issues. 23 That leaves open the question whether the Federal Magistrate had jurisdiction to transfer the matter to a court that has jurisdiction over the substantive issues. Mr Lloyd relied on McIntosh as authority that there was no such jurisdiction, however, as demonstrated above, in McIntosh that proposition depended on the construction of s 86A(1) of the Trade Practices Act . Section 39 is significantly different; it deals with the transfer from one court with federal jurisdiction to another. The constitutional difficulties that were pertinent to the construction of s 86A(1) are not relevant to its construction. 24 Section 39 applies to a proceeding that is 'pending' in the FMC. The Macquarie Dictionary gives the meaning of 'pending' as including 'remaining undecided, awaiting decision'. This is an appropriate description of the proceeding as it was until the Federal Magistrate made an order disposing of it. That order could have been to dismiss it or, as occurred, an order to transfer it to this Court. I see no reason why his Honour's jurisdiction did not extend to the latter order.