Uhlmann & Anor v Harris (No 2)

This case considered an application for an order for possession of land in New South Wales, where the applicants resided in Queensland and the respondent resided in New South Wales. Jackson J held that the Supreme Court of New South Wales did not have jurisdiction, and therefore it followed that the Supreme Court of Queensland did not have cross-vested jurisdiction to make the order. Of interest is that his Honour held that, notwithstanding recent doubts over its continuing application, he was bound by the “Moçambique rule” which requires that a “superior court will not exercise jurisdiction upon a claim of title to and for possession of land situated outside its territorial jurisdiction”.
Jackson J
26 February 2018
In this matter Jackson J considered an application for an order for possession of land in New South Wales, in circumstances where the applicants resided in Queensland and the respondent resided in New South Wales. [1].
In his Honour’s earlier reasons, Jackson J suggested that the Supreme Court of Queensland’s cross-vested jurisdiction of the Supreme Court of New South Wales might empower it to make an order for recovery of possession of land situated in New South Wales. [6]. Section 4(3) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) relevantly provides: “[t]he Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”. [7]. A “State matter” is defined in s 3 to mean “a matter … in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State”. [8].
The Attorney-General for the State of Queensland submitted that a proceeding in the Supreme Court of New South Wales between the applicants would be a case falling within the diversity jurisdiction of the High Court under s 75(iv) of the Constitution and, pursuant to ss 38 and 39 Judiciary Act 1903 (Cth), a matter of exclusive federal jurisdiction. [10]. Accordingly, the Attorney-General submitted that this was not a matter in which the Supreme Court of New South Wales had jurisdiction “otherwise than by reason of a law of the Commonwealth”. [10]. The result would be that it was not a “State matter” as defined in s 3 of the New South Wales cross-vesting Act. [10].
Jackson J agreed with this submission and said that “[i]t 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 [in New South Wales] in a proceeding between residents of different States”. [12]. However, his Honour added that such cross-vested jurisdiction would have been conferred if both the applicants and the respondent had been residents of Queensland or of New South Wales. [12].
The Attorney-General also submitted that in the absence of the cross-vested jurisdiction of the Supreme Court of New South Wales, the Supreme Court of Queensland was bound to apply the “Moçambique rule” to an application for an order of possession in that State. [13]. The “Moçambique rule” is the historical rule that a “superior court will not exercise jurisdiction upon a claim of title to and for possession of land situated outside its territorial jurisdiction”. [6].
Jackson J held that, notwithstanding recent doubts that have been expressed about the continuing application of that rule, his Honour was bound to hold that the rule continued to apply in Queensland. [14]. However, this was subject to two exceptions. First, “to assume the continuing operation of the Moçambique rule as a matter of generality”, and as if the cross-vesting legislation and other legislation did not exist, “would be erroneous”. [18]. As his Honour explained:
“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.” [18].
The second exception concerned whether the Moçambique rule would apply in the exercise of the diversity jurisdiction of the High Court invested in the Queensland Supreme Court by ss 38 and 39 Judiciary Act 1903 (Cth). [27].
Jackson J considered the effect of s 79 Judiciary Act. His Honour explained, as has recently been confirmed again in Rizeq v Western Australia (2017) 91 ALJR 707, that the laws of each State to be applied under s 79 Judiciary Act are statutory laws. [30]. However, “[w]hen s 79 operates to pick up a law of this or another State it does not extend the operation of the law”. [30]. For the reasons discussed above, the Supreme Court of Queensland’s cross-vested jurisdiction did not extend to a matter in which the Supreme Court of New South Wales had jurisdiction under a law of the Commonwealth. [30]. As such, there was no statutory law which could be picked up and applied by s 79. [30].
However, his Honour proceeded on the footing that the Moçambique rule was applied by s 80 Judiciary Act as part of the common law of Australia and accordingly, it followed that the application for possession of land in New South Wales, in the present case, had to be dismissed. [38].
The application was dismissed with costs.
J English