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Section 79 Judiciary Act 1903 — How Widely Does it Travel?

A re-examination of the application and effect of s 79 of the Judiciary Act 1903 (Cth) that "tangled and technical" topic1 is called for by three developments: the institution, in 1976, of the procedure which the High Court has used to remit all diversity suits to other courts;2 the establishment of the seat of the High Court in the Australian Capital Territory;3 and the enactment of cross-vesting legislation in all Australian jurisdictions. 4 Those events have raised problems as to the law applicable when a court is exercising federal jurisdiction. A related question, to which no consistently satisfactory answer has been given, is: which is the most appropriate court to which to remit any particular case? That problem will be discussed below, although it is likely to arise less frequently with the coming into force of the new legislation on the cross-vesting of jurisdiction. 5 As a result of that legislation, the practice of litigants commencing diversity suits in the High Court is likely to cease. 6 That, in tum, will obviate the need for the High Court to remit those cases to other courts. Still, the issue of the applicable law will not necessarily cease to arise; and when it does it will be in the Federal Court or State Courts rather than in the High Court. Moreover, many other actions falling within the High Court's original jurisdiction will still have to be commenced there; for given s 75 of the Constitution, they cannot be instituted in any other court. 7 The rules governing the applicable law when a court is exercising federal jurisdiction are given in ss 79 and 80 of the Judiciary Act 1903 (Cth).