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  • Jennifer Sheean

I've got the Power! (Or have I?)

I was at the STEP Qld conference last year and one of the many excellent speakers raised a topic that really caught my attention. It concerned a dispute that came before Justice Jackson of the Supreme Court of Queensland. The case was Uhlmann & Anor v Harris (No 2) [2018] QSC 28.


Jackson J considered a dispute between a New South Wales resident and a Queensland resident in relation to a claim for possession of a property in Fingal Head, New South Wales.


The applicants wanted the respondent to be evicted from the Fingal Head property. So they brought an application for an order for possession of the land in the Supreme Court of Queensland. The applicants live on the Gold Coast - so, in Queensland. His Honour was concerned that he may not have jurisdiction to make the order. And this is where the matter gets interesting. (Although, I'll apologise in advance for referring to a number of pieces of legislation!)


Section 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("NSW Cross-Vesting Act") provides inter alia that the Supreme Court of Queensland has and may exercise original and appellate jurisdiction of the Supreme Court of New South Wales "with respect to State matters".


A "State matter" is defined in section 3 of the NSW Cross-Vesting Act as "... 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 ..."


You may now be wondering 'what's the problem? The possession of property in New South Wales is a matter within the jurisdiction of the Supreme Court of New South Wales so it clearly is a matter that the NSW Cross-Vesting Act says the Supreme Court of Queensland is able to exercise that jurisdiction.' And if applicants lived in New South Wales, that would be correct. But they don't. And that is where the next piece of the puzzle comes in.


Section 75(iv) of the Constitution provides that the High Court has original jurisdiction in all matters arising between residents of different States. So, in this case, the High Court has jurisdiction to hear the matter but it would be unlikely to want to do so. And it wouldn't have to because sections 38 and 39 of the Judiciary Act 1903 (Cth) invest the Supreme Court of New South Wales with the jurisdiction to hear matters that are within the High Court's exclusive federal jurisdiction.


Those sections also invest the Supreme Court of Queensland with exclusive federal jurisdiction. But, in both cases, it only invests the federal jurisdiction where the Court has, within the limits of its own jurisdictions, such as to locality, subject-matter, or otherwise, such a jurisdiction. By that I mean, if the Supreme Court of Queensland has jurisdiction in its own right because the property is in Queensland then sections 38 and 39 of the Judiciary Act 1903 (Cth) would mean that it could determine the dispute even though it was between residents of different States.


Because the property is in New South Wales, the Supreme Court there has the jurisdiction to determine the dispute even though the parties are residents of different States.


Did I hear you say 'what's the issue? The NSW Supreme Court has the jurisdiction to hear it. The NSW Cross-Vesting Act allows the Supreme Court of Queensland to exercise the original jurisdiction of the NSW Supreme Court. Doesn't that mean Justice Jackson can determine the matter?' Well, no.


The difficulty is the NSW Cross-Vesting legislation only allows the Supreme Court of Queensland to exercise its jurisdiction if the NSW Court has jurisdiction "otherwise than by reason of a law of the Commonwealth". The only reason the NSW Supreme Court has jurisdiction is by reason of a law of the Commonwealth - sections 38 and 39 of the Judiciary Act 1903 (Cth). So, the NSW Cross-Vesting legislation doesn't assist and, as Jackson J held, the Supreme Court of Queensland didn't have jurisdiction to determine the matter.


You can read the decision here:


But why is this so interesting to me, a barrister who primarily works in Succession Law matters? As you may know, I have a deep interest in issues involving cross-border estates. I undertook an Advanced Certificate in Cross-Border Disputes through STEP. It was a great course, looking at issues arising in EU countries, the UK, the USA, and even issues of Sharia Law. But cross-border estate issues arise much closer to home. For example, between residents of Queensland and New South Wales.


In the next blog, I'll look at some facts that could arise in a claim for provision from a deceased estate that sets out why the Uhlmann decision is so interesting to me - and I hope it will be interesting to you too!


Chao!




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