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date: 24 September 2023

Federal Court of Australia

The Oxford Companion to the High Court of Australia

Bryan Beaumont

Federal Court of Australia, 

created by the Federal Court of Australia Act 1976 (Cth), began to exercise its jurisdiction on 1 February 1977. It assumed a miscellany of statutory jurisdictions formerly exercised by the High Court, and the whole of the jurisdiction formerly exercised by the Australian Industrial Court and the Court of Bankruptcy. One of the principal reasons for setting up the Federal Court was the recognition that, with more and more matters arising under federal laws, the High Court could not act as a federal trial court and still have adequate time for research and reflection in important areas of its constitutional and appellate jurisdiction (Re Minister for Immigration; Ex parte Durai rajasingham (2000); and see Commonwealth, Parliamentary Debates, House of Representatives, 21 October 1976, 2110–13). Barwick, who as Attorney‐General had advocated the creation of a Federal Court, said in 1964 that his objective was to free the High Court for the discharge of its fundamental duties as interpreter of the Constitution and as the national court of appeal, untrammelled by some appellate and much original jurisdiction with which it need not be concerned (see also Whitlam era). This view prevailed against the fears of some that the creation of a federal court might introduce costly and unnecessary jurisdictional disputes of the kind that have marked the division between federal and state courts in the USA.

In addition to the other jurisdictions vested in the Federal Court by the Commonwealth legislature, the High Court has power under section 44 of the Judiciary Act 1903 (Cth) to remit certain matters commenced in its original jurisdiction to both state and federal courts (State Bank of NSW v Commonwealth Savings Bank (1984). In 1983, the High Court was further empowered to remit to the Federal Court most claims for prerogative relief by way of prohibition or mandamus.

The Federal Court is a superior court of record and a court of law and equity. It sits in all capital cities and elsewhere in Australia from time to time. Its original jurisdiction is conferred by more than 120 statutes (see the Court's Annual Report 1998–99, Appendix 5). Its jurisdiction is broad and unlimited in amount. It covers almost all civil matters arising under Australian federal legislation and some summary criminal matters. Its jurisdiction, which is often exclusive (except for the High Court), embraces Admiralty; bankruptcy; judicial review of federal administrative action, including appeals from federal tribunals (see Administrative law); copyright, patents and designs, and trade marks; federal labour relations; consumer law; anti‐competitive trade practices; human rights; native title; federal taxation appeals; and misleading or deceptive conduct in corporate trade or commerce.

The Federal Court also has jurisdiction with respect to associated matters (section 32 of the Federal Court of Australia Act) and an accrued jurisdiction in respect of an attached non‐severable claim (Stack v Coast Securities (1983). The former provision allows the Federal Court to decide federal matters related to a claim within its jurisdiction even though no express jurisdiction over those matters is conferred by the relevant statutes. The latter relates to matters arising under state jurisdiction or the common law that are not of themselves matters of federal jurisdiction, but are related to a Federal Court claim. As a result of the High Court's decision in Re Wakim (1999) on the cross‐vesting scheme, the Federal Court lost a substantial part of its jurisdiction over corporations law, and must again deal with difficult issues of associated and accrued jurisdiction.

The Federal Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of the Court and also exercises general appellate jurisdiction in criminal law and civil matters on appeal from the Supreme Court of the ACT and the Supreme Court of Norfolk Island.

Under section 33(2) of the Federal Court of Australia Act, no appeal lies to the High Court from a judgment of a single judge of the Court. But section 33(3) of the Act permits an appeal to the High Court from a judgment of the Full Court if the High Court grants special leave to appeal. The High Court has jurisdiction to grant the writ of prohibition against the Federal Court, whether or not there is a right to appeal to the High Court (Adamson's Case (1979). The High Court has jurisdiction to grant certiorari (calling up the records of a lower court) directed to a judge of the Federal Court (R v Gray; Ex parte Marsh (1985); Durairajasingham).

In managing its litigation, the Federal Court has developed some innovative techniques, especially in the area of expert evidence. The Court is self‐administered and autonomous. Part IIA of the Federal Court of Australia Act now makes provision for its management along lines similar to the High Court of Australia Act 1979 (Cth), with one exception: powers of administration are conferred upon the Chief Justice of the Federal Court, not the Justices as a whole. But in practice, there is little difference in the ways the two courts are administered: both have embraced the spirit of collegial governance.

The establishment of the Federal Court was not without controversy. As well as the fear, in some quarters, that there would be jurisdictional disputes, there was fear in some states about the Federal Court's impact on state Supreme Courts. However, as the first Chief Justice of the Federal Court, Nigel Bowen, said in 1985:

The fact is that the Federal Court has slotted into the Australian legal system very smoothly. It has dealt with specialized federal areas of jurisdiction not previously dealt with by State courts. It has not to any appreciable extent taken work away from State courts. It has prevented them from being invested with a substantial body of new federal jurisdiction which would overload their already strained resources.

The Court's place in the Australian legal system has been reinforced by the appointment of a number of judges of the Federal Court to the High Court, namely Brennan, Deane, Toohey, and Gummow.

Bryan Beaumont

Further Reading

Garfield Barwick, ‘The Australian Judicial System: The Proposed New Federal Superior Court’ (1964) 1 Federal Law Review 1Find this resource:

Bryan Beaumont, ‘The Self‐Administering Court: From Principles to Pragmatism’ (1999) 9 Journal of Judicial Administration 61Find this resource:

Bryan Beaumont, ‘Managing Litigation in the Federal Court’ in Fiona Wheeler and Brian Opeskin (eds), The Australian Federal Judicial System (2000)Find this resource: