The Supreme Courts’ inherent supervisory jurisdiction (lawyers’ fees) Part 1

I gave a talk to the National Costs Law Conference put on by the Law Institute of Victoria the other day.  This is part 1 of the paper which accompanied it. The balance will follow.

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The unlimited jurisdiction of the Supreme Court

The Supreme Court of Victoria has a constitutionally entrenched unlimited[1] subject matter jurisdiction. Section 85(1) of the Constitution Act 1975 (Vic) says

‘Subject to this Act the [Supreme] Court shall have jurisdiction in or in relation to Victoria … in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.’

Service of the defendant in Victoria or abroad where service abroad has been authorised, or acquiescence of the defendant to jurisdiction is a sufficient link to Victoria.  So the Court could in such a case probably hear a claim between residents of Norway and Finland about a snowmobile accident in Canada governed by Taiwanese law.

Section 85(5) provides that:

‘A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless [certain parliamentary procedures are followed and the amending provision expressly declares an intention to amend or repeal s. 85].’

Section 85(8) provides that:

‘A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which augments any jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in subsection (5).’

But the Supreme Court’s jurisdiction given by a Victorian statute can be abrogated by a Commonwealth statute, because of the paramountcy of federal laws over state laws. Thus Family Court Rules made pursuant to the Family Law Act 1975 which provided for taxation of costs as between solicitor and client by the Family Court, in a manner inconsistent with the rules for taxation by the Costs Court, impliedly repealed the Legal Profession Act 2004 (Vic) provisions for taxation by operation of s. 109 of the Commonwealth Constitution.[2]

Other states and territories do not have provisions cognate with ss. 85(5) and (8),[3] and nor does the United Kingdom,[4]so authorities about the express and implied abrogation of their superior courts’ jurisdiction, and about the deference to parliament’s views in the exercise of the inherent jurisdiction, must be treated with caution in Victoria.  I suspect a failure to keep this in mind has contributed to a confusion or at least a lack of awareness in the profession and in parts of the judiciary about the supremity of the Supreme Court in the supervision of lawyers and how unaffected it should be by statute.

Whenever a question about the Supreme Court’s jurisdiction arises, three principles are germane:

    • First, because judges can be trusted to act judicially, grants of powers to courts are to be interpreted according to ‘the most liberal construction’ of the extent of that grant.[5]
    • Secondly, in civil proceedings governed by ss. 7-8 of the Civil Procedure Act 2010, courts are required to interpret their powers, and exercise their powers (expressly inclusive of the Supreme Court’s inherent jurisdiction powers) in a way which seeks to give effect to the overarching purpose of civil proceedings – the just, efficient, timely and cost-effective resolution of the real issues in dispute.
    • Thirdly, r. 1.06 of the Supreme Court (General Civil Procedure) Rules 2015 states that nothing in the Rules limits the jurisdiction, power or authority which the Court had immediately before their commencement date. Furthermore, rules made under a ‘practice and procedure’ rule making power must not alter or diminish any existing jurisdiction: McInnes v Twigg (1992) 16 Fam LR 185 at 197.

[1] The law was elegantly summarised recently in Thomas v The a2 Milk Company Ltd [No 2] [2022] VSC 725. As to ‘unlimited’: [28].

[2] See James (a pseudonym) v Taussig Cherrie Fildes [2022] VSC 559 at [41]-[45] and the authorities referred to there.

[3] John Waugh, ‘The Victorian Government and the Constitution of the Supreme Court’ (1996) 19 UNSWLJ 409.

[4] For an examination of the inherent jurisdiction in the UK, see Stuart Sime, ‘Inherent Jurisdiction and the Limits of Civil Procedure’ in Assy and Higgins (eds), Principles, Procedure and Justice, Essays in Honour of Adrian Zuckerman, 2020, Oxford University Press.

[5] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205 (Gaudron J); Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486, 492; Michelotti v Roads Corporation (2009) 26 VR 609, 614 [24]; Collection Point Pty Ltd v Cornwalls Lawyers Pty Ltd [2012] VSC 492 at [93].

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