Private Law Theory

ABSTRACT
The interpretation adopted by the Full Federal Court of Australia in Crosby v Kelly (2012) 203 FCR 451 of s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as a law of the Commonwealth for the purposes of s 76(ii) of the Constitution, and as a source of federal jurisdiction, has had significant consequences for the Australian Judicature, including, most notably, the Federal Court’s jurisdiction to hear and determine defamation proceedings where there is alleged to be publication in the Australian Capital Territory. This article considers and tests the conceptual underpinnings of the Full Court’s reasoning in Crosby v Kelly. While there can be no doubt that the Commonwealth Parliament has the legislative power to confer jurisdiction on the Federal Court to hear and determine matters concerning defamatory publications in the territories, this article argues that there is considerable doubt that, as a matter of statutory construction, that power was exercised by the Commonwealth in the enactment of s 9(3) and that, if the Federal Court’s jurisdiction cannot be sustained under s 9(3), there would not appear to be a clear and established basis for the Federal Court to hear and determine defamation proceedings.

Pulsford, Myles, The Federal Court’s Defamation Jurisdiction: Revisiting Crosby v Kelly (2012) 203 FCR 451 (November 6, 2024), (2025) Australian Law Journal (forthcoming).