Supreme Court New South Wales Medium Neutral Citation: Jin v Commissioner of Australian Federal Police [2020] NSWSC 1283 Hearing dates: On the papers Decision date: 21 September 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to s 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), this proceeding is transferred to the Federal Court of Australia. (2) The costs of this notice of motion are to be costs in the cause. Catchwords: CIVIL PROCEDURE – cross-vesting – transfer of proceedings from Supreme Court of NSW to Federal Court of Australia – special federal matter – review of decision falling under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – limitation of Supreme Court's jurisdiction – proceedings transferred Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 9 Crimes Act 1914 (Cth), s 3LA Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6 Category: Principal judgment Parties: Allen Jin (Plaintiff) Commissioner of Australian Federal Police (First Defendant) Local Court of New South Wales (Second Defendant) File Number(s): 2020/247360 Judgment 1. HIS HONOUR: The plaintiff, Allen Jin, filed a notice of motion on 11 September 2020 seeking an order pursuant to s 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Act") that this proceeding be transferred to the Federal Court of Australia. The plaintiff had commenced proceedings in the Supreme Court on 24 August 2020 by way of summons, seeking judicial review of an order made by Milledge LCM on 9 July 2020. The defendants to the summons were the Commissioner of the Australian Federal Police as the first defendant, and Milledge LCM as the second defendant. By an amended summons filed by the plaintiff on 8 September 2020, the second defendant became the Local Court of New South Wales. 2. Milledge LCM's decision was made pursuant to s 3LA of the Crimes Act 1914 (Cth) ("the decision"). In its essence, the plaintiff's claim is that this Court does not have jurisdiction to review a decision of an administrative character made concerning Commonwealth legislation, and that the proceedings should have been commenced in the Federal Court of Australia. Accordingly, the plaintiff now seeks that the proceedings be transferred to the Federal Court. 3. The first defendant informed the Court by correspondence that it consents to the proposed transfer and that it is content for the matter to be dealt with in Chambers. On 8 September 2020, it filed proposed short minutes of order. The second defendant filed a submitting appearance on the same date. 4. In support of his application, the plaintiff relies upon an affidavit of his solicitor, Sam Chamas, sworn 9 September 2020. Mr Chamas deposed that the decision falls under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), that the Supreme Court does not have jurisdiction to review the decision in question, and the proceedings should be transferred to the Federal Court. Consideration 1. Section 9(1) of the ADJR Act provides: "9 Limitation of jurisdiction of State courts (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review: (a) a decision to which this section applies that is made after the commencement of this Act." 1. Section 9(2) of the ADJR Act provides that "a decision to which this section applies" is "a decision to which this Act applies", which is defined in s 3 of the ADJR Act to include a decision of an administrative character made under a Commonwealth Act. 2. Section 6 of the Act provides: "6 Special federal matters (1) If: (a) a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter, and (b) the court does not make an order under subsection (3) in respect of the matter, the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2) (b). (1A) However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in subsection (2) (b), as the case may be. (2) If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred: (a) if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c), (d) or (e) of the definition of special federal matter in section 3 (1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth—to the Federal Court, or (b) if the matter for determination in the proceeding is a matter mentioned in paragraph (ab) of that definition—to whichever of the Family Court, the Family Court of Western Australia or the Supreme Court of the Northern Territory, in the opinion of the court, is appropriate in the circumstances. (3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties. (4) Before making an order under subsection (3), the court must be satisfied that: (a) a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State, and (b) a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding. (5) For the purposes of subsection (4), the court: (a) may adjourn the proceeding for such time as the court thinks necessary and may make such order as to costs in relation to an adjournment as it thinks fit, and (b) may direct a party to the proceeding to give a notice in accordance with that subsection. (6) In considering whether there are special reasons for the purposes of subsection (3), the court must: (a) have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in subsection (2) (b), whichever is appropriate in the particular case, and (b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4). (7) Nothing in this section prevents the court granting urgent relief of an interlocutory nature if it is in the interests of justice to do so. (8) If, through inadvertence, the Supreme Court determines a proceeding of the kind mentioned in subsection (1) without: (a) the court making an order under subsection (3) that the proceeding be determined by that court, or (b) a notice mentioned in subsection (4) being given, nothing in this section invalidates the decision of that court. (9) This section does not apply to a proceeding by way of an appeal that is instituted in the Full Court of the Supreme Court if the court the decision of which is the subject of the appeal had made an order under subsection (3), or under section 6 (1) as in force before the commencement of the Jurisdiction of Courts (Cross-vesting) Amendment Act 1992, in relation to the special federal matter." 1. Section 3LA of the Crimes Act 1914 (Cth) concerns applications by a police constable to a magistrate for an order requiring a specific person to provide information or assistance in respect of a computer or computer system. 2. I am satisfied that the decision is of an administrative character made pursuant to a Commonwealth Act, which falls for review under the ADJR Act. Consequently, the Supreme Court does not have jurisdiction to hear a review of that decision, and the requirements of s 6(1) of the Act have therefore been met. Orders 1. I make the following orders: (1) Pursuant to s 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), this proceeding is transferred to the Federal Court of Australia. (2) The costs of this notice of motion are to be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2020