High Court of Australia

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16

Re McBain; Ex parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church

209 CLR 372; 76 ALJR 694; 188 ALR 1

18 Apr 2002

Case Number: C22/2000 C6/2001

Before

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ

Catchwords

Constitutional Law (Cth) – Judicial power of the Commonwealth - Matter - Claims in Court's original jurisdiction to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation - Claimants not parties to prior litigation - No parties to prior litigation instituted appeal or sought constitutional relief in respect of the judgment in that litigation - Claimants include Commonwealth Attorney-General seeking to affirm the operation of a State law as not inconsistent with federal law within the meaning of s 109 of the Constitution - Whether claims give rise to a "matter" under Ch III of the Constitution - Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal - Whether, if so, relief should be granted in the exercise of the Court's discretion.

High Court – Jurisdiction - Whether Court's original jurisdiction extends to claims to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation - Claimants not parties to prior litigation - Whether claims give rise to a "matter" under Ch III of the Constitution - Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal - Exercise of discretion to provide such relief.

Certiorari – Whether available against a judge of a federal superior court in respect of non-jurisdictional error of law on the face of the record - Discretion to grant - Whether Attorney-General entitled to certiorari as of right - Factors favouring discretionary refusal to grant certiorari in respect of non-jurisdictional error of law on the face of the record in litigation to which claimants were not parties.

Practice and procedure – Application to extend time - Application by Commonwealth Attorney-General on the relation of another for writ of certiorari instituted out of time - Factors favouring non-extension of time.

Practice and procedure – Parties - Intervention - Application by Commonwealth Attorney-General - Intervention by Attorney-General to put submissions partly at odds with submissions put by relator in name of Attorney-General.

Words and phrases – "matter".

Commonwealth Constitution – ss 75(v), 76(i).

Judiciary Act 1903 (Cth) – ss 30(a), 32, 33, 78A.

High Court Rules – O 55 r 17, O 64 r 2.

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