Scott v Bowden [2002] HCA 60

HIGH COURT OF AUSTRALIA

McHUGH J

LETTY MARIE SCOTT & ANOR PLAINTIFFS

AND

WILLIAM HENRY BOWDEN & ORS DEFENDANTS

Scott v Bowden [2002] HCA 60

17 December 2002

S346/2002

ORDER

1. Liberty be granted to the plaintiffs to file and serve any amended statement of claim on or before 31 January 2003.

2. The matter be remitted to the Supreme Court of the Northern Territory as if the steps already taken and to be taken under order 1 were taken in the Supreme Court of that Territory.

3. The Registrar of this Court provide to the proper officer of the Supreme Court of the Northern Territory photocopies of all pleadings and summonses filed in this Court and the originals of the other materials in the Court file.

4. The costs of the proceedings in this Court to date are to be costs in the Supreme Court of the Northern Territory.

5. The costs referred to in this Court, including the costs of this order, be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in the Supreme Court of the Northern Territory and in the discretion of that Court.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. McHUGH J. Of my own motion, I asked the parties to these proceedings why I should not remit this matter to the Federal Court of Australia under the power conferred by s 44 of the Judiciary Act 1903 (Cth). 2. The plaintiffs have filed a Statement of Claim in this Court claiming various forms of relief against the defendants. The plaintiffs are residents of New South Wales, at least one of the defendants is a resident of Queensland, and the other defendants are residents or appear to be residents of the Northern Territory. The Writ of Summons and Statement of Claim are far from clear. They do not specify the true nature of the plaintiffs' claims and will need amendment, if the present action is to proceed. But, read generously, they claim damages for loss suffered as the result of the death of Douglas Bruce Scott who was the first plaintiff's husband and the second plaintiff's father while he was in custody in the Northern Territory. The plaintiffs also appear to make a claim for an order that the defendants be charged with unlawful imprisonment, torture, murder and conspiracy to pervert the course of justice. All the conduct that is the subject of the claims is alleged to have taken place in the Northern Territory. At the material times, the defendants are alleged to have been employees of the Territory. 3. The material filed in support of the Statement of Claim demonstrates that the issues involve many questions of fact that are not suitable to be tried in this Court given its constitutional and appellate functions. All parties agree that the matter should be remitted to another court under the power conferred by s 44 of the Judiciary Act. But they disagree as to the court to which the matter should be remitted. The plaintiffs submit that the matter should be remitted to the Federal Court while the defendants submit that the matter should be remitted to the Supreme Court of the Northern Territory. But a serious question arises as to whether this Court has any power to remit the matter to the Federal Court. 4. This Court has jurisdiction in the present matter by virtue of s 75(iv) of the Constitution which provides that the High Court shall have jurisdiction in all matters: