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Pendent Jurisdiction in Australia—Section 32 of the Federal Court of Australia Act 1976

Published online by Cambridge University Press:  24 January 2025

W. M. C. Gummow
W. M. C. Gummow*
Affiliation:
New South Wales Bar
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Abstract

The Federal Court of Australia has only the jurisdiction conferred on it by statute. However, many disputes falling within that jurisdiction, particularly in trade practices matters, will also involve elements of common law or other State or federal statutory law. Section 32 invests in the Federal Court additional jurisdiction in some such cases in respect of “associated matters”. This may be compared with “pendent jurisdiction” developed by the federal courts in the United States. The object of this article is to analyse the meaning of the term “associated matters” and to consider the bearing it has upon the future relationship between the Federal Court and the various State courts.

Type
Research Article
Information
Federal Law Review , Volume 10 , Issue 3 , September 1979 , pp. 211 - 237
Copyright
Copyright © 1979 The Australian National University

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References

1 It is to be observed that the 1978 amendments to the Act, in inserting a new Division 2A of Part V to deal with actions by consumers against importers and manufacturers of goods ordinarily acquired for personal, domestic or household use or consumption, have departed from this scheme. The consumer may recover under the new Division “in a court of competent jurisdiction” which clearly envisages State Courts pursuant to s. 39 of the Judiciary Act 1903 (Cth). On the other hand, s. 86 of the Trade Practices Act, which is unaltered by the 1978 amendments, still in terms invests exclusive jurisdiction in proceedings under Part VI in the Federal Court. The new remedy given by the 1978 amendments is in Part V and not Part VI. However, s. 82, which is in Part VI, gives a remedy in damages for contravention of, inter alia, Part V; this remedy is expressed in different terms to that found in the new Division 2A of Part V. If this is not so, then a breach of the new Division gives rise to alternative remedies; to damages in State Courts and to damages in the Federal Court. The better view is that the new specific remedy must be read as excluding the general words of s. 82 and the jurisdiction of the Federal Court. On the other hand, it has been held by a N.S.W. District Court that it had no jurisdiction to entertain a claim for damages for breach of conditions implied by the old Division 2 of Part V and that the Federal Court was the only proper forum: Fletcher v. Seddon Atkinson Australia Pty Ltd [1979] 1 N.S.W.L.R. 169. The decision is debatable but its correctness will here be assumed.

2 S. 163A, which is found, anomalously, in Part XII of the Trade Practices Act, confers on the Federal Court power to grant declarations and orders by way of or in the nature of prohibition certiorari or mandamus. It is apparent from the terms of sub-s. (2) that there is no intention to render this declaratory jurisdiction exclusive of that of the State Courts under their general power in that behalf: B.P. Australia Ltd v. Bannerman (1976) 3 T.P.C. 286. The Federal Court also has general authority, under s. 21 of the Federal Court of Australia Act 1976 (Cth), to grant declarations of right, but only where it already has jurisdiction in the case.

3 Cf. Hornsby Building Information Centre v. Sydney Building Information Centre Ltd (1978) 52 A.L.J.R. 392; Weitmann v. Katies Ltd (1977) 29 F.L.R. 336; United Telecasters Sydney Ltd v. Pan Hotels International Pty Ltd [1978] A.T.P.R. 40-085.

4 The Trade Practices Act goes to some pains to indicate that some rights given under it are in addition to and not in derogation of any other right or remedy: ss. 75(3), 75A(4). But it is another thing to say that a plaintiff may in a particular case be free to pursue cumulatively the various remedies given by the law even though they be incompatible. For example, s. 75A gives to the disappointed consumer who has purchased goods under a contract in breach of the conditions implied by Division 2 of Part V a right to “rescind” by returning the goods and a right to recover the purchase money as a debt. At general law if he had accepted and paid for the goods he would be left with the goods and an action for damages for breach. Surely he cannot now return the goods, recover the price and also recover common law damages? See O'Connor v. S.P. Bray Ltd (1936) 36 S.R. (N.S.W.) 248, 263; Fullers' Theatres Ltd v. Musgrove (1923) 31 C.L.R. 524, 547-548, which suggest he must elect.

5 Copyright Act 1968, Part V; Judiciary Act 1903, s. 39; Designs Act 1906, ss. 30, 39; Patents Amendment Act 1976, s. 7; Trade Marks Amendment Act 1976, s. 7.

6 See also as regards income tax, Part V of Division 2 of the Income Tax Assessment Act 1936 (Cth) as amended by the Income Tax Assessment Amendment (Jurisdiction of Courts) Act 1976, which produces a comparable position with proceedings under that legislation.

7 As he would be entitled, and probably obliged to do; see n. 1.

8 See now, however, in Canada the Federal Court Act 1970-1971, the jurisdictional complexities created by which are discussed by Professor Hogg in a Note (1977) 55 Canadian Bar Review 550.

9 (1824) 9 Wheat. 738; 22 U.S. 738.

10 Id. 822.

11 (1824) 22 U.S. 904.

12 “Federal Jurisdiction and the Revision of the Judicial Code” (1948) 13 Law and Contemporary Problems 216, 224-225.

13 (1938) 305 U.S. 315, 323.

14 (1949) 178 F. 2d 648.

15 18 Stat. 470, see now 28 U.S.C. §1331 (1958).

16 Moor v. County of Alameda (1972) 411 U.S. 693, 711.

17 Levering & Garrigues Co. v. Morrin (1933) 289 U.S. 103, 105.

18 Binderup v. Pathe Exchange (1923) 263 U.S. 291,306.

19 O'Brien v. Westinghouse Electric Corp. (1961) 293 F. 2d 1, 12.

20 (1933) 289 U.S. 238.

21 See Schulman v. Huck Finn Inc. (1973) 472 F. 2d 864; Rainville Company Inc. v. Consupak Inc. (1976) 407 F. Supp. 221; Sims v. Western Steel Coy (1977) 551 F. 2d 811; Thompson Tool Co. Inc. v. Rosenbaum (1977) 443 F. Supp. 559.

22 (1938) 305 U.S. 315, 325.

23 (1927) 274 U.S. 316, 321.

24 See notes (1933) 33 Columbia Law Review 699, 701; (1934) 32 Michigan Law Review 412.

25 Strachman v. Palmer (1949) 177 F. 2d 427, 432; Note (1958) 71 Harvard Law Review 513, 514.

26 (1959) 263 F. 2d 52.

27 29 §187.

28 (1959) 263 F. 2d 52, 59.

29 (1956) 236 F. 2d 447, 454.

30 Issued under s. 106 of Securities Exchange Act of 1934, 15 U.S.C. §78.

31 Darwin v. Jess Hickey Oil Corp. (1957) 153 F. Supp. 667, 673; Brown v. Bullock (1961) 194 F. Supp. 207, 220; Strachman v. Palmer (1949) 177 F. 2d 427, affd 82 F. Supp. 161, 166.

32 (1942) 127 F. 2d 9.

33 Id. 10.

34 Id. 11.

35 Id. 12.

36 (1952) 12 F.R.D. 403. See also Wagner v. World Wide Automobiles Corp. (1961) 201 F. Supp. 22.

37 (1958) 260 F. 2d 607. See also Wood v. Precise Vac-U-Tronic Inc. (1961) 192 F. Supp. 619.

38 15 u.s.c. §77.

39 (1966) 383 U.S. 715, noted (1968) 81 Harvard Law Review 657. This decision has been discussed by the Supreme Court in Moor v. County of Alameda (1972) 411 U.S. 693 and Hagans v. Lavine (1973) 415 U.S. 528, 545-550, but not with any result presently of importance.

40 Id. 125.

41 29 U.S.C. §187.

42 Rainville Company Inc. v. Consupak Inc. (1976) 407 F. Supp. 221; Sims v. Western Steel Coy (1977) 551 F. 2d 811; Thompson Tool Co. Inc v. Rosenbaum (1977) 443 F. Supp. 559.

43 Schulman v. Huck Finn Inc. (1973) 472 F. 2d 864; cf. Powder Power Tool Corp. v. Powder Actuated Tool Co. Inc. (1956) 230 F. 2d 409.

44 French Renovating Co. v. Ray Renovating Co. (1948) 170 F. 2d 945; see also New Orleans Public Belt R. Co. v. Wallace (1949) 173 F. 2d 145; United Shoe Workers of America v. Brooks Shoe Mfg Co. (1960) 191 F. Supp. 288. In recent years there has been considerable conflict between the lower courts as to the power to join a “pendent party”, that is to say a party suing or sued only in respect of a non-federal claim: Hymer v. Chai (1969) 407 F. 2d 136; Almenares v. Wyman (1971) 453 F. 2d 1075, 1083-1085. The Supreme Court in Moor v. County of Alameda (1972) 411 U.S. 693, 713-715 left the issue undecided.

45 Cutting Room Appliances Corp. v. Empire Cutting Machine Co. (1951) 186 F. 2d 997.

46 Wagner v. World Wide Automobiles Corp. (1961) 201 F. Supp. 22.

47 See generally on the 1948 legislation, Note (1952) 37 Iowa Law Review 406; Note, “The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts” (1962) 62 Columbia Law Review 1018.

48 Caldwell-Clements Inc. v. McGraw-Hill Publishing Co. Inc. (1952) 12 F.R.D. 403.

49 Cf. as to the use of such materials in the Anglo-Australian system, Commissioner for Prices and Consumer Affairs (S.A.) v. Charles Moore (Aust.) Ltd (1977) 51 A.L.J.R. 715, 717, 723, 729, 730; Davis v. Johnson [1978] 1 All E.R. 1132, 1140, 1147, 1149, 1153, 1157.

50 Wham-O-Manufacturing Co. v. Paradise Mfg Co. (1964) 327 F. 2d 748; River Brand Rice Mills Inc. v. General Foods Corp. (1964) 334 F. 2d 770, 773.

51 Powder Power Tool Corp. v. Powder Actuated Tool Co. Inc. (1956) 230 F. 2d 409. See also Golden Door Inc. v. Odisho (1977) 437 F. Supp. 956, 962.

52 Pursche v. Atlas Scraper & Engineering Co. (1963) 300 F. 2d 467, 483-484; River Brand Rice Mills Inc. v. General Foods Corp. (1964) 334 F. 2d 770, 772-773.

53 Moore's Federal Practice (2nd ed.) Vol. 1, 658-659.

54 383 U.S. 715.

55 (1976) 407 F. Supp. 221. See also Schulman v. Huck Finn Inc. (1973) 472 F. 2d 864.

56 Lyon v. Bausch & Lomb Optical Co. (1955) 224 F. 2d 530. See River Brand Rice Mills Inc. v. General Foods Corp. (1964) 334 F. 2d 770; Schulman v. Huck Finn Inc. (1973) 472 F. 2d 864; Rainville Company Inc. v. Consupak Inc. (1976) 407 F. Supp. 221; Golden Door Inc. v. Odisho (1977) 437 F. Supp. 956; Thompson Tool Co. Inc. v. Rosenbaum (1977) 443 F. Supp. 559.

57 Hagans v. Lavine (1973) 415 U.S. 528.

58 In re The Judiciary and Navigation Acts (1921) 29 C.L.R. 257. See also the analysis of that decision in Commonwealth v. Queensland (1975) 50 A.L.J.R. 189, 198-199.

59 Trade Marks Act 1955, s. 62; Marc A. Hammond Pty Ltd v. Papa Carmine Pty Ltd [1976] 2 N.S.W.L.R. 124, 127.

60 Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Pty Ltd (1978) 52 A.L.J.R. 392; Ex parte Pilkington A.C.I. (Operations) Pty Ltd (1978) 53 A.L.J.R. 230; Ex parte Soul Pattinson (Laboratories) Pty Ltd (1978) 53 A.L.J.R. 238.

61 (1942) 66 C.L.R. 557, 578-580.

62 (1966) 383 U.S. 715.

63 (1933) 289 U.S. 238.

64 [1979] A.T.P.R. 40-133.

65 (1979) 27 A.L.R. 475, 501.

66 (1934) 52 C.L.R. 221; (1942) 66 C.L.R. 452; (1942) 66 C.L.R. 551; (1949)80 C.L.R. 229; (1964) 113 C.L.R. 1 respectively. The current doctrine in the United States is explained in Hagans v. Lavine (1973) 415 U.S. 528, 545-550.

67 Carter v. Egg & Egg Pulp Marketing Board of Victoria (1942) 66 C.L.R. 551, 580 per Latham C.J. The Family Law Act 1975 bys. 33 confers on the Family Court jurisdiction in respect of matters not otherwise within its jurisdiction that are “associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court”. The resemblance to s. 32 of the Federal Court statute will be apparent, Of s. 33 Gibbs J. (in Re Ross Jones; ex parte Beaumont (1979) 53 A.L.J.R. 259 observed that its effect was “far from clear” and continued (without adverting to the High Court constitutional authorities, still less to the American decisions as to retention of pendent jurisdiction after loss of the principal claim, of which Hurn v. Oursler (1933) 289 U.S. 238 is a striking example): “It cannot be intended to mean, and would not be constitutionally valid if it did mean, that if the jurisdiction of the court is unsuccessfully invoked it nevertheless has jurisdiction in associated matters. The section can only apply if the court already has jurisdiction; its jurisdiction is then extended, so far as is constitutionally permissible, to associated matters.”

68 (1979) 27 A.L.R. 475, 499.

69 (1942) 66 C.L.R. 557, 580.

70 To construe s. 32 any more widely than has been urged in this article might well be to take it beyond the incidental to the merely contemporaneous and so outside legislative power.

71 (1824) 9 Wheat. 738, 823; 22 U.S. 738, 821.