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This topic is within Resolving Civil Disputes.


Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [5.10]-[5.96].


[1] Obviously, a plaintiff must be a claim in the court with the appropriate jurisdiction over the matter, and with the appropriate jurisdiction to grant the plaintiff its remedies.

  • Eg, If the plaintiff seeks equitable relief then it can only be granted by the Supreme Court, however, the District Court has some equitable jurisdiction: (s 134 District Court Act 1973 (NSW)).
  • If a party seeks a legislative remedy then it must sue in the court or tribunal specified by the legislation.

Cross-Vesting Legislation

[2] The cross-vesting legislation (Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)) vested the federal jurisdiction of the federal courts in the state Supreme Court, and also vested the non-federal jurisdiction of the state courts to the federal courts (ie, gave the each court the power of the other).

  • However, Re Wakim; ex parte McNally[3] determined that the federal court cannot be vested with non-federal jurisdiction, and the legislation is invalid to the extent that it purports to do. Thus, the federal courts cannot hear a non-accrued state matter.
  • After Re Wakim; Ex Parte McNally the following provisions from the Act apply:
    • Conferral of federal jurisdiction on State courts (s 4).
    • Cross vesting of State jurisdiction among State courts (s 4).
    • Transfer of proceedings between courts participating in the scheme (s 5).

This was discussed in BHP Billiton v Schultz:

  • The criterion for transfer established by section 5 is that it is in the 'interests of justice' that the proceedings be determined in the other court. This has a broad definition, meaning, the other court must be more appropriate.
  • Choosing an appropriate court usually involves looking at considerations of cost, expense and convenience.

BHP Billiton Ltd v Schultz highlighted factors which could be relevant to the choice of forum:

  • The place or places where the parties and/or witnesses reside or carry on business
  • The location of the subject matter of the dispute
  • The importance of local knowledge to the resolution of the issue(s)
  • The law governing the relevant transaction
  • The procedures available in the different courts
  • The likely hearing dates in the different courts
  • Whether it is sought to transfer the proceedings to a specialised court, for example the Family Court


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BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 271-2.
  2. BKL, p. 272.
  3. (1999) 198 CLR 511.
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