As we said in our Public Law in Brief: Statutory Interpretation, the ‘modern approach’ to statutory interpretation places greater importance on the context of the text than the ‘literal approach’ which emphasised adherence to the plain meaning of the words of the statute. This means that context is considered in the first instance (not only where there is ambiguity in the meaning of the words used), and consideration is given to the statute as a whole, the existing state of the law, and the purpose of the statute.
The broader statutory context encompassing legislative purpose and history sometimes requires the literal or ordinary meaning of words to be read more narrowly than may, when regard is had solely to the text of the legislation, appear to be appropriate.
But how can we tell when the statutory context requires the literal meaning of a word to be displaced? In the upcoming case of Page v. Sydney Seaplanes, the High Court will hear an appeal from the New South Wales Court of Appeal (Court of Appeal) in which the Court of Appeal considered that the statutory context of the New South Wales legislation relating to jurisdiction of federal courts appropriately included the history of that legislation, and the fact that the legislation was introduced in response to a High Court decision on the validity of cross-vesting legislation. The Court of Appeal concluded that these and other contextual factors indicated that the literal meaning of the relevant provision should be displaced and the words should instead be given a narrower, legal meaning.
The facts and decision in Sydney Seaplanes
On 31 December 2017, a seaplane departing Cottage Point bound for Rose Bay crashed, killing Ms Heather Bowden-Page. The seaplane was operated by Sydney Seaplanes. On 18 December 2019, less than two years after the accident, Mr Page (Ms Bowden-Page’s father) commenced proceedings in the Federal Court of Australia seeking damages pursuant to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (Commonwealth Act), as incorporated into NSW law by the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) (NSW Act).
The Federal Court determined that it had no jurisdiction to hear the claim as the flight took place wholly within NSW. One complication for Mr Page was that the Commonwealth Act required a person to bring a claim for damages within two years of the relevant accident, and failure to do so would result in the ‘extinguishment’ of any right to damages. By the time of the Federal Court’s decision, more than two years had elapsed. So Mr Page relied on the Federal Courts (State Jurisdiction) Act 1999 (NSW) (State Jurisdiction Act) to have the proceeding that had been dismissed by the Federal Court “treated as a proceeding in the Supreme Court”. This would assist him to get around the two-year limitation period.
The State Jurisdiction Act, which was enacted in response to the High Court’s decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Wakim), provided in s11(2) that ‘a person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order’. A ‘relevant order’ was defined in s11(1) as ‘an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction’. A ‘State matter’ was relevantly defined in s3 as a matter ‘in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a Territory’, or a matter ‘in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court’. The NSW Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) were each deemed to be a ‘relevant State Act’ in s3 of the State Jurisdiction Act.
It was not in dispute that the order dismissing Mr Page’s Federal Court proceeding fell within the literal meaning of a ‘relevant order’ in s11 of the State Jurisdiction Act. On that basis, Adamson J (primary judge) made an order, under s11(2) of the State Jurisdiction Act, that the Federal Court proceeding be treated as a proceeding in the Supreme Court, which was within the two-year limitation period. Sydney Seaplanes appealed, relevantly on the basis that it alleged the order dismissing the Federal Court proceeding for want of jurisdiction was not a ‘relevant order’ within the meaning of s11 of the State Jurisdiction Act.
The Court of Appeal allowed Sydney Seaplanes’ appeal. Bell P (with whom Leeming JA and Emmett AJA agreed), concluded that the order dismissing the Federal Court proceedings for want of jurisdiction was not a ‘relevant order’. This was because although his Honour found that the Federal Court order clearly fell within the literal meaning of a ‘relevant order’, this literal meaning did not correspond to the legal meaning of those words in the State Jurisdiction Act. To reach this conclusion, Bell P reasoned as follows:
- the ‘modern approach’ to statutory construction emphasises that the statutory context should be understood in a broad sense and extends to the existing state of the law, legislative purpose, and any mischief which the statute was intended to remedy (at );
- in this case, the State Jurisdiction Act was enacted in direct response to the ‘momentous’ decision of the High Court in Wakim in which it was held that the component of the cross-vesting scheme by which federal courts were purportedly invested with jurisdiction by State legislation was unconstitutional (at ). Further, s4(1) of the State Jurisdiction Act defines ‘ineffective judgment’ as a reference to a judgment of a federal court in a State matter ‘in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act’;
- turning to s11, Bell P observed that it is directed to a proceeding in a federal court in which an order is made that the relevant federal court has no jurisdiction to hear and determine it on the basis that it relates to a State matter: ‘[s]uch an order, being a “relevant order”, could be effectuated either by means of a declaration to that effect or by an order dismissing, striking out or staying the proceeding relating to a State matter for want of jurisdiction’ (at ). Whereas the primary judge decided that the purpose of s11 was to ‘remedy the consequences of the Federal Court’s lack of jurisdiction in State matters’, Bell P considered that this was too broad in light of the specific context of the legislative response to Wakim (at ); and
- instead, Bell P concluded (at -) that in s11:
‘the want of jurisdiction being referred to is not any general want of jurisdiction but rather a want of jurisdiction by reason of a constitutionally invalid conferral of jurisdiction of the kind addressed in Wakim…’.
The consequence, in this case, was that Bell P concluded that the meaning of ‘relevant order’ must be read in a way that is consistent with the purpose of the Act and the definition of ‘ineffective judgment’, which is directed to a case where the jurisdiction of the federal court in question has been purportedly but ineffectively conferred by a relevant State Act. The Federal Court’s jurisdiction had not been purportedly conferred in this way – Mr Page had simply commenced his proceeding in the wrong Court. The result was that the appeal was allowed and Mr Page could not bring himself within the two-year limitation period.
Appeal to the High Court
On 13 April 2022, the High Court granted Mr Page special leave to appeal from the Court of Appeal’s decision.
On appeal, the Appellant does not seek to impugn the Court of Appeal’s statement of the relevant principles of statutory construction. Rather, the Appellant argues that the Federal Court order dismissing his proceeding clearly meets the textual meaning of a ‘relevant order’, and courts should be slow to imply into a statutory provision a limitation on the conferral of jurisdiction. Furthermore, the Appellant argues that the Court of Appeal was unduly restrictive in holding that the State Jurisdiction Act was narrowly intended to address the consequences of Wakim, and that there is ‘no reason to regard these provisions as a dead letter’ which do not apply to his proceeding. If the Appellant’s submissions are upheld, the decision could have broader ramifications for the way courts interpret statutory provisions conferring jurisdiction.
The High Court appeal is likely to be heard in late 2022. You can expect an update once the High Court delivers its judgment.
This article was written by Michael Palfrey, Partner, Will Sharpe, Partner and Neil Cuthbert, Senior Associate.