- 2 -
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION ACD 70 of 2011
| BETWEEN: | LYNTON CROSBY First Applicant |
| MARK TEXTOR Second Applicant | |
| AND: | MICHAEL KELLY Respondent
|
| JUDGES: | BENNETT, PERRAM AND ROBERTSON JJ |
| DATE OF ORDER: | 2 JULY 2012 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
PERRAM J
2 I agree with the orders proposed by Robertson J. The result is, in some ways, surprising, but appears to be required by the decision in Ruhani v Director of Police (2005) 222 CLR 489. In effect, s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) is to be understood as creating surrogate Commonwealth law by reference to the jurisdiction of the ACT Supreme Court and thereafter providing a law of the Commonwealth under which matters may then be seen to arise. It is both the source of the underlying right as surrogate Commonwealth law under s 122 of the Constitution and also a law defining the jurisdiction of this Court under s 77(i). Mr Dibb of counsel, who appeared for Dr Kelly, sought to distinguish Ruhani on the basis that it was concerned with the jurisdiction of the High Court rather than the definition of the jurisdiction of a federal court under s 77(i). This is true but, in my opinion, is a difference without a distinction. The analysis above is unaffected by the difference.
3 Mr Dibb also sought to say that s 9(3) was to be construed so as not to be a conferral of jurisdiction but rather merely as the expression by the Commonwealth Parliament of its
