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Uhlmann v Harris (No 2)

 

[2018] QSC 28

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Uhlmann & Anor v Harris (No 2) [2018] QSC 28

PARTIES:

PHILLIP PAUL UHLMANN AND REBECCA SUZANNE UHLMANN

(applicants)

v

ARABELLA KATRINA DOUGLAS HARRIS

(respondent)

FILE NO/S:

SC No 11725 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

  1. The application for an order for possession of the land situated at 30A Bambery Street, Fingal Head, New South Wales be dismissed.
  2. The respondent pay the applicants costs of the proceeding up to 8 December 2017.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where the applicants and respondent reside in different States – whether a Queensland court exercising the diversity jurisdiction of the High Court, invested in the court by section 39(2) of the Judiciary Act 1903 (Cth) is able to make an order for recovery of possession of land in New South Wales

Constitution (Cth), s 77

Judiciary Act 1903 (Cth), ss 38, 39, 79, 80

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 9

Residential Tenancies Act 2010 (NSW)

Service and Execution of Process Act 1992 (Cth)

A Goninon & Co v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956, cited

Aboriginal Housing Company Ltd v Kaye-Engel (No 3) [2014] NSWSC 718, cited

Aboriginal Housing Company Ltd v Kaye-Engel (No 6) [2015] NSWSC 1241, cited

Aboriginal Housing Company Ltd v Kaye-Engel (No 7) [2015] NSWSC 1554, cited

Beijing Joseph Investment Co Ltd v Starr World Investment Ltd [2015] WASC 110, cited

Bond v Sulan (1990) 26 FCR 580, cited

British South Africa Co v Companhia de Moçambique [1893] AC 602, discussed

Burns v Corbett (2017) 316 FLR 448, cited

Commonwealth v Woodhill (1917) 23 CLR 482, distinguished

Corvisy v Corvisy [1982] 2 NSWLR 557, cited

Courtice v Australian Electoral Commission (1990) 21 FCR 554, cited

Couzens v Negri [1981] VR 824, cited

Dagi v Broken Hill Pty Ltd [No 2] [1997] 1 VR 428, cited

David Syme & Co Ltd v Grey (1992) 38 FCR 303, cited

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, cited

Habib v Commonwealth (2010) 183 FCR 62, cited

Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, cited

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, cited

Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45

Jones v State of Queensland [1998] 2 Qd R 385, cited

Kodak (Australasia) Pty Ltd v Commonwealth (1988) 22 FCR 197, cited

Lawrence v Gunner [2015] NSWSC 944, cited

Lawrence v Gunner [2015] NSWSC 1229, cited

Mustac v Medical Board of Western Australia [2007] WASCA 128, cited

Nudd v Taylor [2000] QSC 344, cited

Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354, cited

Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, cited

PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, cited

Re Doyle; ex parte Brien v Doyle (1993) 41 FCR 40, cited

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited

Rizeq v Western Australia (2017) 91 ALJR 707, cited

Schmidt v Won and ors [1998] 3 VR 435, cited

Singh v Singh (2009) 253 ALR 575, cited

Starr-Diamond v Diamond (No 3) [2013] NSWSC 351, cited

West Australian Psychiatric Nurses’ Association v Australian Nursing Federation (1990) 30 FCR 120, cited

COUNSEL:

Written submissions by M Sexton SC, Solicitor-General for New South Wales

Written submissions by P Dunning QC, Solicitor-General for Queensland and F Nagorcka

SOLICITORS:

Hickey Lawyers for the applicants

No appearance for the respondent

Crown Solicitor for the Attorney-General of Queensland

Crown Solicitor for the Attorney-General of New South Wales

Jackson J

  1. In Uhlmann & Anor v Harris [2017] QSC 309, I considered the applicants’ application for an order for possession of land located at 30A Bambery Street, Fingal Head, New South Wales, in circumstances where the applicants reside in the southern part of the City of the Gold Coast in this State and the respondent resides on the land at Fingal Head. 
  2. The reasons (“my earlier reasons”) considered three central questions: first, the nature of this court’s jurisdiction in a matter where the applicants and the respondent are residents of different States, so as to attract the “diversity jurisdiction” of the High Court under s 75(iv) of the Constitution; second, whether this court has power in such a case to order recovery of possession of land in New South Wales; and third, the effect of s 119 of the Residential Tenancies Act 2010 (NSW) (“RTANSW”).
  3. I reasoned, in part, that:

“…the possible solution to the present case emerges, as follows.  Under the cross-vesting legislation, this court has the original jurisdiction of the Supreme Court of New South Wales.  Second, the Supreme Court of New South Wales has original jurisdiction and power to make an order for the recovery of possession of land under the common law of Australia.  Third, in a case where the proceeding is between residents of different States that power of the Supreme Court of New South Wales is not cut down by s 119 of the RTANSW.  Fourth, the jurisdiction of this court conferred by the cross-vesting legislation is among the laws of this State picked up by s 79 of the Judiciary Act 1903 (Cth) as a law of the State in a matter in this court exercising the federal diversity jurisdiction.”[1]

  1. The underlying reasoning for that possible solution would have required a further finding, namely that the jurisdiction conferred on the New South Wales Civil and Administrative Tribunal (“NCAT”) by the provisions of the RTANSW to make an order for recovery of possession of land in a matter between residents of different States is invalid under s 109 of the Constitution.  Because that question raised a matter under the Constitution, I directed that notices were required to be given to the Attorneys-General of the Commonwealth and the States under s 78B of the Judiciary Act 1901 (Cth) before any decision was made.
  2. The Attorney-General for the State of New South Wales and the Attorney-General for the State of Queensland (“QAG”) have both intervened and made submissions that the order for possession sought by the applicants should not be granted.  Numerous points have been raised.  It is necessary to deal with only some of them.
  3. My earlier reasons canvassed the point that this court’s cross-vested jurisdiction of the Supreme Court of New South Wales[2] would empower this court to make an order for recovery of possession of land situated in New South Wales.[3]  The historical rule is that a British or Australian superior court will not exercise jurisdiction upon a claim of title to and for possession of land situated outside its territorial jurisdiction, sometimes referred to as the Moçambique rule.[4]  The rule has been abolished by statute in New South Wales,[5] but not in this State.
  4. As to the present case, the QAG refers to s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (“NSW Cross-Vesting Act”) that provides that this court (inter alia) has and may exercise original and appellate jurisdiction of the Supreme Court of New South Wales as follows:

“(3) The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters.”

  1. The QAG also refers to the definition of “State matter” in s 3 of the NSW Cross-Vesting Act as follows:

“… a matter… in which the Supreme Court [of New South Wales] has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State, ...”

  1. In postulating that the present case might be resolved by jurisdiction conferred on this court by the cross-vesting legislation, in my earlier reasons, I relied upon Starr-Diamond v Diamond (No 3)[6] as supporting the conclusion that the cross-vesting legislation outflanks any remaining operation of the Moçambique rule. That was a case between residents of different States.  Accordingly, it was a case within the diversity jurisdiction of the High Court under s 75(iv) of the Constitution.  That jurisdiction was invested in, inter alia, the Supreme Court of New South Wales, as exclusive federal jurisdiction by ss 38 and 39 of the Judiciary Act 1903 (Cth),[7] as set out in my earlier reasons.[8] Accordingly, the Supreme Court of New South Wales was invested with exclusive federal jurisdiction for the same reasons that the current proceeding in this court is a matter of exclusive federal jurisdiction.
  2. In effect, the QAG submits that a proceeding in the Supreme Court of New South Wales between the applicants and the respondent would also be a matter of exclusive federal jurisdiction, because that court too would have jurisdiction only by reason of s 39(2) of the Judiciary Act 1903 (Cth).  The QAG submits that is not a matter in which that court would have jurisdiction “otherwise than by reason of a law of the Commonwealth”.  Accordingly, it is not a “State matter” as defined in s 3 of the NSW Cross-Vesting Act and s 4 of that Act does not invest this court with any jurisdiction in the matter in this proceeding.
  3. The QAG submits that reasoning is supported by a number of cases[9] and that I should follow them, although I may not be bound by them, and notwithstanding Starr-Diamond v Diamond (No 3).  I agree.
  4. It follows that this court does not have the cross-vested jurisdiction of the Supreme Court of New South Wales to make an order for possession of the land at Fingal Head in a proceeding between residents of different States.  But it should be noted, at this point, that such cross-vested jurisdiction would have been conferred if both the applicants and respondent had been residents of the City of the Gold Coast or of the City of Tweed Heads.
  5. Second, the QAG also submits, in effect, that in the absence of the cross-vested jurisdiction of the Supreme Court of New South Wales to make an order for possession of land in that State, this court is bound to apply the Moçambique rule to an application for an order of possession of land in that State.
  6. Notwithstanding the recent doubts that have been expressed about the continuing application of that rule in the High Court,[10] as mentioned in my earlier reasons, the QAG submits that as yet the Moçambique rule has not been overruled by the High Court (or by another court of binding authority), to the extent that it operates as between the states and Territories, and no statute has abolished its continuing application in this State as has occurred in New South Wales.  The QAG relies on cases in the High Court,[11] this court, and other State and federal courts,[12] including intermediate appellate courts,[13] as demonstrating the continuing application of the Moçambique rule as between the States and Territories.[14] The QAG submits that until it is abolished or overruled by the High Court or other court of binding authority, I am bound to follow the cases that accept the rule.  Subject to two points of exception, and notwithstanding that I consider that there are trenchant general criticisms as to the application of the rule as between the States and Territories of Australia, I agree that I should follow the courts that have applied or accepted the continuing application of the Moçambique rule.
  7. Once that point is reached, the QAG submits that it is inevitable that this court must dismiss the present application for an order for possession.  However, in my view, acceptance that the Moçambique rule has a continuing application is not, by itself, a sufficient process of reasoning to decide this case. 
  8. The first point of exception returns the discussion to the cross-vesting legislation.  In a matter of State jurisdiction, an Act of the Queensland Parliament, s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) provides, in part:

 

“The Supreme Court—

  1. may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of… a law of… a State relating to cross-vesting of jurisdiction; and

…”

  1. That section positively confers authority to adjudicate upon this Court.  The condition of that grant of authority is that the jurisdiction is conferred by a law of a State relating to cross-vesting of jurisdiction.  The relevant law in this case is s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), as previously set out.
  2. The QAG submits that the Moçambique rule is a principle of common law that limits the authority of this Court to adjudicate on the title to or to make an order for possession of land in New South Wales.  However, that submission is made as if the cross-vesting legislation and the provisions of the Service and Execution of Process Act 1992 (Cth) as to service of originating process[15] and the enforcement of judgments of this court throughout Australia[16] do not exist.  In my view, to assume the continuing operation of the Moçambique rule as a matter of generality would be erroneous.  In a matter of State jurisdiction, where this court has the cross-vested power of the Supreme Court of New South Wales to decide a question of title to and to make an order for possession of land and the order of this court may be enforced in New South Wales, the common law Moçambique rule must give way and is cut down, at least to that extent.
  3. The second point of exception is as to the laws that apply when this Court is exercising authority to adjudicate in a case within the exclusively federal diversity jurisdiction of the High Court, conferred on this Court under ss 38 and 39 of the Judiciary Act 1903 (Cth).
  4. Had the case been started in the High Court, it would be not be suggested that court is precluded from making an order for possession of land at Fingal Head by the Moçambique rule, so the question is raised whether, in exercising that court’s jurisdiction, as invested in this court by ss 38 and 39, this court is unable to make such an order.
  5. Section 39(2) provides, in part:

“(2)  The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subjectmatter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions…”

  1. The QAG submits that the jurisdiction conferred on this court under s 39(2) is limited as to locality and subject matter, within the meaning of s 39(2), in a way that limits its jurisdiction to decide the title to or make an order for possession of land in New South Wales because this court's jurisdiction as to locality or subject matter is limited by the Moçambique rule.  However, as previously discussed, authority to adjudicate and the territorial jurisdiction of this court in a matter in State jurisdiction exists in the cross-vested jurisdiction of this court and the Moçambique rule is cut down, at least to that extent.
  2. So, apart from the point that the cross-vested jurisdiction of this court does not extend to a case in the exclusive federal jurisdiction of this court, as previously discussed, what is the limit of locality, subject matter, or otherwise, of this court that would cut down the scope of its power to exercise the Australia-wide jurisdiction of the High Court in a matter in the diversity jurisdiction?
  3. The QAG makes no reasoned argument that answers that question.  Rather, she submits that the conclusion that the Moçambique rule operates as a limit on all federal jurisdiction exercised by this court necessarily follows from the decision of the High Court in Commonwealth v Woodhill.[17]  I do not agree.
  4. In that case, land at Jervis Bay was acquired compulsorily by the Commonwealth under the Lands Acquisition Act 1906 (Cth) ("LAA"). When the parties could not agree upon the compensation payable under the LAA, the former owner started a proceeding in the Supreme Court of New South Wales claiming an amount for the compensation.  By the time when the proceeding was started, Jervis Bay had become a Commonwealth area under the Jervis Bay Territory Acceptance Act 1915 (Cth). The Commonwealth applied to dismiss the proceeding on the basis that the Supreme Court did not have authority to decide it.  That question turned on the proper construction of s 37 of the LAA, which expressly provided that a proceeding for compensation could be started in a court of "competent jurisdiction".  The question was what was a court of “competent jurisdiction”, properly construing s 37.
  5. In reaching the conclusion that the Supreme Court of New South Wales was not a court of “competent jurisdiction”, within the meaning of the LAA, one of the Justices referred to the Moçambique case.  However, Woodhill did not concern the authority of that court to decide either the title to or make an order for possession of land, and is no authority on the operation of the Moçambique rule in the diversity jurisdiction.  Its ratio decidendi is confined to the meaning of s 37 of the LAA.
  6. Accordingly, in my view, this court is not bound by Woodhill to apply the Moçambique rule in the exercise of the diversity jurisdiction of the High Court invested in this court by ss 38 and 39 of the Judiciary Act 1903 (Cth).
  7. Two further questions remain.  The laws to be applied in this court in exercising the authority to adjudicate the present matter are those provided for by ss 79 and 80 of the Judiciary Act 1903 (Cth).  Do the laws to be applied under those sections include the Moçambique rule?
  8. Section 79(1) provides:

“(1)  The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

  1. The recent decision of the High Court in Rizeq v Western Australia[18] confirms again that the laws of each State to be applied under s 79 are statutory laws.[19]  It is here that a difficulty arises as to the power to decide the title to and make an order for possession of land in New South Wales in a matter like the present case.  When s 79 operates to pick up a law of this or another State it does not extend the operation of the law.  It simply applies it as Commonwealth law, “with its meaning unchanged”.[20]  For the reasons previously discussed, this court’s cross-vested jurisdiction of the Supreme Court of New South Wales does not extend to a matter in which the Supreme Court of New South Wales has jurisdiction under a law of the Commonwealth, because the statutory laws of Queensland and New South Wales which confer power on this court to exercise the jurisdiction of the Supreme Court of New South Wales do not (and could not) go so far.  Accordingly, there is no statutory law that is picked up and applied by s 79 that empowers this court to decide a question of title to and to make an order for the possession of land in New South Wales.
  2. Section 80 provides:

 “So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

  1. The last question, therefore, is whether the common law in Australia applied by s 80 operates to deny this court power to decide the matter of the title to and to make an order for possession of land in New South Wales because of the continuing operation of the Moçambique rule.
  2. This question was also addressed by the QAG by the submission that the decision in Woodhill is binding authority, which I have rejected.  However, the point remains that I have accepted that I should follow the decisions that accept that the Moçambique rule is part of the common law of Australia, and operates as between the States and Territories, except where it has been repealed by statute, so unless that part of the common law is not “applicable” under s 80, it will govern this court in exercising the exclusive federal diversity jurisdiction, in this civil matter, by the operation of that section.
  3. John Pfeiffer Pty Ltd v Rogerson[21] illustrates three relevant points.  First, the common law in Australia applied by s 80 in federal jurisdiction may have to be developed:

“…to take account of federal jurisdiction as delineated in Ch III of the Constitution and, also, to take account of the federal system in which sovereignty is shared between the Commonwealth and the member States of the federation.”[22]

  1. Second:

“… the terms of s 118 [of the Constitution] indicate that, as between themselves, the States are not foreign powers as are nation states for the purposes of international law.”[23]

  1. Third, in dealing with the application of a common law rule, the “Australia wide”[24] nature of federal jurisdiction may have an impact.  In that case, one relevant common law rule was the private international law common law rule requiring “double actionability” for a tort committed outside the territorial jurisdiction of the court. As to that, it was held:

“So far as concerns federal jurisdiction, once it is appreciated that that jurisdiction extends throughout Australia, it follows that a court exercising that jurisdiction with respect to an Australian tort is exercising jurisdiction with respect to events that occurred in its own law area. That being so, there is no scope for the operation of a double actionability rule. And that is so whether or not the tort involves an interstate element.”[25]

  1. Those points suggest that it is arguable that the common law in Australia as applied by s 80 does not include a rule formulated as part of the common law of a nation state as between itself and foreign powers for the purposes of international law, such as the Moçambique rule, when applied as between the States and Territories. However, in the absence of reasoned arguments that the Moçambique rule is or is not applicable, and given the fundamental operation and effect of s 80 in applying the common law in Australia in cases of federal jurisdiction, I do not consider that it is “an appropriate step”[26] for me to further develop or consider such an argument, in relation to the otherwise long-established operation of the Moçambique rule.  Alternatively, as a matter of “judicial comity”,[27] I should not depart from the existing decisions previously mentioned that would support the application of the Moçambique rule.
  2. It follows that I must proceed on the footing that the Moçambique rule is applied by s 80 as part of the common law and from that conclusion it follows that the application in this court for possession of the land of located at 30A Bambery Street, Fingal Head, New South Wales, in the present case, must be dismissed.
  3. In circumstances where the applicants have not dealt with the range of submissions made by the Attorneys-General, and where some of the other submissions involve questions as to the authority to adjudicate of different courts that have been raised in, or have been argued and reserved for decision, by the High Court[28] and the Supreme Court of New South Wales[29] it is preferable not to deal with the other points that were argued by either of the Attorneys-General, including whether NCAT has no jurisdiction to decide an application for possession where the dispute is between residents of different States, the effect of Part 3A of the Civil and Administrative Tribunal Act 2013,[30] or the proper construction of ss 81 and 119 of the RTANSW and their effect on the jurisdiction of the Supreme Court of New South Wales.[31] 
  4. The very recent decision of NCAT in Johnson v Dibbin; Gatsby v Gatsby[32] only adds further to the complications as to the authority of relevant courts and NCAT to decide a question of title to and make an order for possession of land subject to a residential tenancy in New South Wales.  It is no exaggeration to describe the state of the law as Byzantine.  In Johnson, NCAT decided, inter alia, that it is a “court of a State”[33] capable of receiving a grant of federal jurisdiction.  In so deciding, it refused, in effect, to follow the contrary basis of the decision of the Court of Appeal of New South Wales in Burns v Corbett.[34]

Postscript

  1. Before the applicants started this proceeding, they tried to make an application in NCAT for a “termination order”, terminating the tenancy and for possession of their land. The application was rejected by NCAT on the ground that it did not have the authority to adjudicate the dispute, because of the decision in Burns v Corbett.
  2. However, when the applicants’ solicitors were notified last Friday that I would give judgment this morning they informed my Associate that, after Johnson was decided, NCAT, of its own volition, sought out the applicants and invited them to request that NCAT “re-open” the application before NCAT. The applicants did so on 16 February 2018.  On 21 February 2018, NCAT proceeded to “reverse” its earlier decision and made an order for possession.
  3. Had I concluded that the applicants were otherwise entitled to an order for possession in this proceeding, the applicants request to NCAT to “re-open” the proceeding in NCAT while this proceeding was reserved for judgment might have raised a question whether it is an abuse of process for the applicants to maintain both proceedings.  However, it is unnecessary to consider that point because, in any event, I have reached the conclusion that the present proceeding must be dismissed.

Footnotes

[1] Uhlmann & Anor v Harris [2017] QSC 309, [40].

[2] Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4.

[3] Uhlmann & Anor v Harris [2017] QSC 309, [30].

[4] British South Africa Co v Companhia de Moçambique [1893] AC 602; Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511; Commonwealth v Woodhill (1917) 23 CLR 482, 487.

[5] Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s 3.

[6]  [2013] NSWSC 351, [6].

[7] PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, 21 [53].

[8] Uhlmann & Anor v Harris [2017] QSC 309, [17]-[20].

[9] Kodak (Australasia) Pty Ltd v Commonwealth (1988) 22 FCR 197, 202-203; Courtice v Australian Electoral Commission (1990) 21 FCR 554, 557; Bond v Sulan (1990) 26 FCR 580, 584; West Australian Psychiatric Nurses’ Association v Australian Nursing Federation (1990) 30 FCR 120, 129-130; David Syme & Co Ltd v Grey (1992) 38 FCR 303, 329; A Goninon & Co v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956, [48]-[51]; Beijing Joseph Investment Co Ltd v Starr World Investment Ltd [2015] WASC 110, [22].

[10] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 520 [76]; Moti v The Queen (2011) 245 CLR 456, 475 [49].

[11] Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511; Commonwealth v Woodhill (1917) 23 CLR 482, 487.

[12] Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, 42; Corvisy v Corvisy [1982] 2 NSWLR 557, 558; Couzens v Negri [1981] VR 824, 825-828 and 830; Re Doyle; ex parte Brien v Doyle (1993) 41 FCR 40, 57; Dagi v Broken Hill Pty Ltd [No 2] [1997] 1 VR 428, 433-434; and Habib v Commonwealth (2010) 183 FCR 62, 79 [41].

[13] Schmidt v Won and ors [1998] 3 VR 435, 446; Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354, 367-368 [37]-[42]; and Singh v Singh (2009) 253 ALR 575, 582 [21].

[14] Jones v State of Queensland [1998] 2 Qd R 385, 387-388; and Nudd v Taylor [2000] QSC 344 [4]-[6].

[15] Service and Execution of Process Act 1992 (Cth), s 15(1).

[16] Service and Execution of Process Act 1992 (Cth), s 105.

[17]  (1917) 23 CLR 482.

[18]  (2017) 91 ALJR 707.

[19]  (2017) 91 ALJR 707, 723 [78].

[20]  (2017) 91 ALJR 707, 726 [91].

[21]  (2000) 203 CLR 503, 532-535 [59]-[70].

[22]  (2000) 203 CLR 503, 534 [65].

[23]  (2000) 203 CLR 503, 534 [65].

[24]  (2000) 203 CLR 503, 530 [53].

[25]  (2000) 203 CLR 503, 540 [88].

[26]  Compare Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [134].

[27] Mustac v Medical Board of Western Australia [2007] WASCA 128, [37]-[43].

[28] Burns v Corbett [2017] HCATrans 247; [2017] HCATrans 249.

[29] Zistis v Zistis (SCNSW, No 2017/153633).

[30]  Part 3A was introduced by the Justice Legislation Amendment Act (No 2) 2017 (NSW) commencing on 1 December 2017.

[31]  See Aboriginal Housing Company Ltd v Kaye-Engel (No 3) [2014] NSWSC 718, [19]; Lawrence v Gunner [2015] NSWSC 944, [517]-[522]; Lawrence v Gunner [2015] NSWSC 1229, [2]-[10]; Aboriginal Housing Company Ltd v Kaye-Engel (No 6) [2015] NSWSC 1241, [52]-[62]; and Aboriginal Housing Company Ltd v Kaye-Engel (No 7) [2015] NSWSC 1554, [3] and [5].

[32]  [2018] NSWCATAP 45.

[33]  The Constitution, s 77(iii) and Judiciary Act 1903 (Cth) s 39(2).

[34]  (2017) 316 FLR 448, 456 [29], 471 [95].

Editorial Notes

  • Published Case Name:

    Uhlmann & Anor v Harris (No 2)

  • Shortened Case Name:

    Uhlmann v Harris (No 2)

  • MNC:

    [2018] QSC 28

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    26 Feb 2018

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 309 15 Dec 2017 Application adjourned pending the applicant giving notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States.
Primary Judgment [2018] QSC 28 26 Feb 2018 Application dismissed.

Appeal Status

No Status