Case: R v Forbes ; Ex parte Bevan [1972] HCA 34 ; (1972) 127 CLR 1
Outcome: cited
The Federal Court of Australia is created by s 5 of the Federal Court of Australia Act 1976 (Cth) ('the Act') and the Court is 'a superior court of record and is a court of law and equity'. Those words of extension 'and a court of law and equity' are not part of the formulation seen in s 21(2) of the Family Law Act 1975 (Cth) in respect of the Family Court or in s 98 of the Conciliation and Arbitration Act 1904 (Cth) concerning the Commonwealth Industrial Court, considered in R v Forbes ; Ex parte Bevan [1972] HCA 34 ; (1972) 127 CLR 1. The Court is not a court of what might be described as essentially a court of single subject matter or a court of specialist subject matter such as the Family Court or an Industrial Court. The Court has such original jurisdiction as is vested in it by laws made by the Parliament (s 19(1) of the Act; s 77(i) of the Constitution (having regard to ss 75 and 76 of the Constitution )). The Court is invested with jurisdiction by hundreds of Acts of the Commonwealth Parliament (171 of the 'principal Acts' are set out in Appendix 4 to the Annual Report of the Federal Court of Australia 2005-2006; the 'Notice to Practitioners Conduct of Admiralty &amp; Maritime Work December 2005' identifies 24 Acts conferring jurisdiction in matters relating to admiralty and maritime work of the Court) in a broad range of subject matter attracting almost every facet of the exercise of Commonwealth legislative power which in turn, touches the rights, entitlements and obligations of citizens in matters within the field of that broad subject matter. In that sense, the Court's jurisdiction is broad and in that sense only, general. The Court is not, however, a Court of unlimited jurisdiction. It is entirely statutory. It is invested with jurisdiction in 'matters' whose content derives from the statute conferring jurisdiction (see generally, Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re McBain; Ex parte Aust. Bishops [2002] HCA 16 ; (2002) 188 ALR 1). Importantly, the Court exercises the judicial power of the Commonwealth (s 71 of the Constitution ) as a Chapter III federal court. The Court thus exercises the judicial power of our national polity. When the Court exercises judicial power, it does so to quell controversies arising within the limits of the Court's jurisdiction although it exercises an accrued jurisdiction to determine all matters in controversy of which a federal claim forms part including those parts of a controversy arising under claims recognised by the common law or derived from legislation of a State provided there is a demonstrated unifying or 'common substratum of fact'. The exercise of the accrued jurisdiction means that litigants, particularly citizens (either corporate or individual), might resolve all matters in controversy in one forum as part of a single 'justicable controversy' and so avoid a citizen wasting time and financial resources in framing another controversy in another forum concerning the same subject matter. Of course, questions will sometimes necessarily arise as to whether there is a single 'justicable controversy'; whether a particular claim is separate, distinct and severable and whether a particular claim attracts an element of Federal jurisdiction. A non-Federal claim or matter, however, does not cease to be within the jurisdiction of the Court should the Federal question be decided adversely to the applicant, be struck out or found unnecessary to determine. At the threshold, the Court although deciding in a particular case that its jurisdiction is not enlivened, nevertheless has jurisdiction to decide it has no jurisdiction. 33 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]).