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O state parliaments cannot validly confer

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o State Parliaments cannot validly confer jurisdiction on Federal courts. o Re Wakim did not invalidate entire cross-vesting scheme; only those parts that purported to confer state jurisdiction on Federal courts.
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Life after Wakim o State courts may exercise federal jurisdiction n Cross-vesting survives o Federal Court has accrued jurisdiction n Can still exercise state jurisdiction if arising from the same “matter”. o Federal courts not otherwise able to exercise state jurisdiction n Cross-vesting unconstitutional o Courts may transfer cases to each other.
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Transfers Between Courts per Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) o 5(1) – from Sup Ct to Fed or Family Court o 5(2) – from Vic Sup Ct to another Sup Ct o 5(3) – from another Sup Ct to Vic Sup Ct o 5(4) – from Fed or Fam Court to Sup Ct
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Occasions Where Transfer Must Be Ordered per Cross-vesting Legislation 1. Where there are separate but related proceedings pending in a different court, and the court considers it would be more appropriate for all proceedings to be decided by the other court; 2. Where there is only a single proceeding pending , if it would be more appropriate for the matter to be determined in another court; and In either case - it is otherwise in the interests of justice that there be a transfer.
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Transfers (continued) So the legislation sets out 3 factors to be used in deciding whether to transfer (eg, s 5(2)(b)(ii), s 5(3) (b)(ii)): 1. Before the passage of the cross-vesting legislation, where would the case have been heard? 2. Extent to which the matters involve the application of the law of another jurisdiction. 3. Interests of justice.
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S 5 Transfer of Proceedings Eg transfer from Vic SC to anor SC (b) (ii) having regard to— (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory ; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
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S 5 Transfer of proceedings cont. (C) the interests of justice it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
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BHP Billiton v Schultz (2004) 221 CLR 400 o Test: What do the interests of justice require? o
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o State Parliaments cannot validly confer jurisdiction on...

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