Cross-vesting legislation

[2-1400] Cross-vesting

Last reviewed: December 2024

In 1987, the Commonwealth and each of the States passed legislation, identically described as the Jurisdiction of Courts (Cross-Vesting) Act 1987, purporting to confer jurisdiction on the Federal and Family Courts and on the Supreme Courts of other States and Territories to hear and determine matters arising under State or Territorial law and providing for the transfer of proceedings between those courts. In Re Wakim, Ex parte McNally (1999) 198 CLR 511, the High Court held that, in so far as the State Acts purported to confer jurisdiction in State matters on the Federal or Family Courts, they were invalid, but that left untouched the provisions in the Commonwealth Act relating to conferral of federal jurisdiction on State courts (authorised by Ch III of the Constitution); the conferral by the States of jurisdiction in State matters on the courts of other States and Territories and the provisions for transfer of proceedings between such courts. The preamble to the Act stated, inter alia, that inconvenience and expense had occasionally been caused to litigants by jurisdictional limits in federal, State and Territory courts and it was desirable to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court.

Prior to 1 September 2021, s 4 of the NSW Act conferred jurisdiction in “State matters” (as defined in s 3) on the Supreme Court of another State or Territory or the State Family Court of another State. Note that for the purposes of the Act, “State” includes the Australian Capital Territory and the Northern Territory, and those entities are excluded from the term “Territory”: s 3. On 1 September 2021, s 4(1)(a) of the Cth Act was amended to replace the “Family Court” with the “Federal Circuit and Family Court of Australia (Div 1)” and therefore under the Cth Cross-vesting Act, the NSW Supreme Court was relevantly invested with the jurisdiction of the Division 1 Court. See Re Neil (No 5) (2022) 110 NSWLR 197 for a discussion of the unintended consequences of the amendments: at [6], [66]–[67], [74]–[75], for example, the Supreme Court does not have jurisdiction to make recovery orders under the Family Law Act 1975 as there is a difference between the jurisdiction of the former Family Court and the current Division 1 Court in relation to matters arising under Pt VII of the Family Law Act.

Transfer of proceedings

Section 5(1) provides for the transfer of proceedings from the Supreme Court to the Federal Court or Family Court; s 5(2) provides for the transfer of proceedings from the Supreme Court to the Supreme Court of another State or Territory; s 5(3) for the transfer of proceedings in the Supreme Court of another State or Territory to the NSW Supreme Court; s 5(4) for the transfer of proceedings from the Federal or Family Court to the Supreme Court; and s 5(5) provides for the transfer of proceedings arising out of, or related to, proceedings previously transferred.

The conditions to be satisfied before proceedings are transferred in relation to applications under s 5(1) and (2), are set out in the relevant subsections. Note that following Re Wakim, Ex parte McNally, above, s 5(1) and (4) were amended and s 5(9) inserted to limit the proceedings which can be transferred so as to give effect to that decision. See also Hopkins v Governor-General of Australia (2013) NSWCA 365.

Section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) provides that, if it appears that a matter for determination in an appeal from a “decision of a single judge of the Supreme Court of a State or Territory” is a “matter arising under” one of the 13 Commonwealth Acts specified in the Schedule to the Cross-vesting Act, that appeal is required to be instituted in, and determined by, one of the three courts identified in s 7(5), including the Full Federal Court. The High Court held in HBSY Pty Ltd v Lewis [2024] HCA 35 that s 7(5) should not be “read down” to mean only decisions in federal jurisdiction that have come before the relevant Supreme Court as a result of the operation of s 4(1) of the Cross-vesting Act. Rather, s 7(5) relevantly directs appeals from a Supreme Court decision to the Full Federal Court, irrespective of the source of the Supreme Court’s original jurisdiction, where a matter arising for determination in the appeal is a matter arising under one of the Acts listed in the Schedule to the Cth Cross-vesting Act: at [75]–[76]. See also Papoutsakis v Dunn [2024] NSWCA 246 at [14] which considered the equivalent s 7(4) of the NSW Act.

See also Eberstaller v Poulos (2014) 87 NSWLR 394; Boensch v Pascoe [2016] NSWCA 191; Guan v Li [2022] NSWCA 173.

Where proceedings are pending in a NSW court, other than the Supreme Court or a tribunal, such proceedings may be transferred into the Supreme Court so that consideration may be given to whether such proceedings should be transferred to another court in accordance with the Act: s 8.

The applicant for transfer carries at least a persuasive onus (James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at [100]) but the plaintiff’s choice of tribunal and the reasons for it are not to be taken into account: BHP Billiton Ltd v Schultz (2004) 221 CLR 400. Other relevant considerations include:

  • the place or places where the parties and/or witnesses reside or carry on business;

  • the location of the subject matter of the dispute;

  • the importance of local knowledge to the resolution of the issues;

  • the law governing the relevant transaction, especially if the matter involves the construction of State legislation: Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233;

  • the procedures available in the different courts;

  • the likely hearing dates in the different courts;

  • whether it is sought to transfer the proceedings to a specialised court, for example, the Family Court: Lambert v Dean (1989) 13 Fam LR 285;

  • an exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes: West’s Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (unrep, 6/8/97, NSWSC);

  • whether the matter is a “special federal matter” (defined in s 3(1) of the Commonwealth legislation): such matters must be transferred to the Federal Court unless “special reasons” are established for the proceeding to be determined by the Supreme Court: s 6(3). For guidance as to what constitutes “special reasons” in this context see Huynh v Attorney General (NSW) [2023] NSWCA 190 at [39]–[53].

See generally BHP Billiton Ltd v Schultz, above, and James Hardie & Coy Pty Ltd v Barry, above.

As to cases where different limitation periods are applicable, see cases noted at Ritchie’s [44.5.35].

[2-1410] Sample order

I order that proceedings no 1234 of 2006 in this court be transferred to the Supreme Court of Victoria. Costs of the proceedings to date and of this application to be costs in the cause.

Legislation

  • Jurisdiction of Courts (Cross-Vesting) Act 1987 ss 3, 4, 5(1), 5(2), 5(3), 5(4), 5(5), 5(9), 6(3), 7(5), 8

  • UCPR rr 44.2–44.5