Case: Ly v Jenkins [2001] FCA 1640 ; (2001) 114 FCR 237
Outcome: applied
relevant principle was explained by Sackville J in Ly v Jenkins [2001] FCA 1640 ; (2001) 114 FCR 237 when, at [70] [71] (pp 258 259), his Honour said: It is "accepted constitutional doctrine" that the Commonwealth, when it invests the judicial power of the Commonwealth in a State court, must take that court constituted and organised from time to time: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51 ; 138 ALR 577 at CLR 67 per Brennan CJ. The doctrine was stated by Knox CJ, Rich and Dixon J in Le Mesurier v Connor [1929] HCA 41 ; (1929) 42 CLR 481 at 496, as follows: "[T]he power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal courts." Mr Roberts, in his oral submissions, seemed to suggest that this doctrine renders the Commonwealth constitutionally incapable of altering the jurisdictional limits of a State court by investing that court with federal jurisdiction. This is not so. The position was explained by Latham CJ in Peacock v Newtown Marrickville &amp; General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37: "This is a power to give new, additional, jurisdiction to State courts. The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. It may make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved; or, as in the Judiciary Act , s 39 , it may allow the State law to operate in respect of such matters. But the State court must be taken as it exists. The constitution or structure of the court cannot be changed by the Federal Parliament." (Emphasis added.) Parliament may therefore affect the functions of a State court, but the "court's organization and constitution are inviolate": Russell v Russell [1976] HCA 23 ; (1976) 134 CLR 495 ; 9 ALR 103 at CLR 531 per Stephen J; Adams v Chas S Watson Pty Ltd [1938] HCA 37 ; (1938) 60 CLR 545 at 554 555 per Latham CJ; at 559 per Starke J; at 560 per Dixon J. His Honour there illustrated the principle by referring to s 68(5) of the Judiciary Act 1903 (Cth) as an example of how the Commonwealth Parliament may permissibly affect the functions of a State court within the principle as explained by his Honour. Moore and Kiefel JJ agreed with the reasons of Sackville J on this point. Paragraph 9A (Serious Question to be Tried) Counsel for Mr Davis submitted that the claims made by Mr Davis in par 9A were supported by s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth). He did not rely upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). Counsel submitted that the Notice was invalid and of no effect for two broad reasons, namely: (1) The Notice was bad in form; and (2) The decision to issue the Notice was invalid because the pre-conditions or jurisdictional facts founding its issue had not been established. In support of his first broad ground, Counsel for Mr Davis made a number of points about the Notice.