FEDERAL COURT OF AUSTRALIA

Hooper v Kirella Pty Ltd [1999] FCA 1584

CONSTITUTIONAL LAW – validity of Federal Court Rules O 15A rr 3, 6 – preliminary discovery – whether a claim for preliminary discovery involves a “matter” within s 77(i) of the Constitution

JURISDICTION – whether Parliament has conferred jurisdiction on the Court to make orders for preliminary discovery – whether jurisdiction conferred by Judiciary Act 1903 (Cth), s 39B(1A) – whether grant of jurisdiction under s 39B(1A) of the Judiciary Act precluded by Trade Practices Act 1974 (Cth), s 86(1)

Constitution, ss 71, 75, 76, 77(i)

Judiciary Act 1903 (Cth), ss 39B(1A), 78B

Federal Court of Australia Act 1976 (Cth), ss 5, 19, 23, 24, 31, 32, 59

Trade Practices Act 1974 (Cth), ss 52, 82, 86, 163A

Fair Trading Act 1987 (NSW), s 42

Law and Justice Legislation Amendment Act 1997 (Cth)

Federal Court Rules, O 15A, rr 1, 3, 6, 9

Malouf v Malouf (1999) 86 FCR 134, followed

State Bank of South Australia v Hellaby (1992) 59 SASR 304; (1993) 6 Leg Rep SL2, cited

Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of Vessel “Alley Cat” (1992) 36 FCR 129, cited

Levis v McDonald (1997) 75 FCR 36, cited

Orr v Diaper (1876) 4 Ch D 92, cited

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, discussed

Heimann v Commonwealth (1935) 54 CLR 126, cited

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, cited

British Steel Corporation v Granada Television Ltd [1981] AC 1096, cited

X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, cited

Re Pyne [1997] 1 Qd R 326, cited

Glaxo Wellcome PLC v Minister of National Revenue (1998) 81 CPR (3d) 372, cited

Mercantile Group (Europe) AG v Aiyela [1994] QB 366, cited

Breen v Williams (1996) 186 CLR 71, cited

P v T Ltd  [1997] 1 WLR 1309, cited

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, cited

Stewart v Miller [1979] 2 NSWLR 128, cited

Exley v Wyong Shire Council, unreported, NSW Supreme Court, Master Allen, 10 December 1976, cited

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, cited

Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728, cited

Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480, cited

Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549, cited

CCA Beverages (Adelaide) Limited v Hansford, unreported, Federal Court of Australia,

15 November 1991, cited

Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd, unreported, Federal Court of Australia, 24 May 1996, cited

Re Wakim; Ex parte McNally (1999) 163 ALR 270, discussed

Abebe v Commonwealth (1999) 162 ALR 1, discussed

In re Judiciary and Navigation Acts (1921) 29 CLR 257, discussed

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, cited

Fencott v Muller (1983) 152 CLR 570, cited

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, cited

Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22, cited

South Australia v Victoria (1911) 12 CLR 667, cited

Croome v Tasmania (1997) 191 CLR 119, cited

The Queen v Murphy (1985) 158 CLR 596, discussed

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, cited

Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481, cited

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, discussed

Re Colina; Ex parte Torney [1999] HCA 57, cited

PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863, discussed

Arnhem Land Aboriginal Land Trust v Minister for Mines and Energy for the Northern Territory (1997) 78 FCR 556, cited

Bray, Principles and Practice of Discovery (1885)

Story, Commentaries on Equity Jurisprudence (1^st English ed, 1884)

Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (5^th ed, 1847)

KENNETH FRANCIS HOOPER & ORS v KIRELLA PTY LTD (ACN 079 721 127)

NG 1036 OF 1998

TRANSFIELD PTY LTD (ACN 000 854 688) v AIRSERVICES AUSTRALIA

A 19 OF 1999

JUDGES:       WILCOX, SACKVILLE J & KATZ JJ

DATE:            17 NOVEMBER 1999

PLACE:          SYDNEY

JUDGES:                        WILCOX, SACKVILLE & KATZ JJ

DATE OF ORDER:       17 NOVEMBER 1999

WHERE MADE:           SYDNEY

THE COURT ORDERS THAT:

1.      Leave to appeal be granted.

2.      The appeal be dismissed.

3.      The applicants for leave pay the costs of the respondent of the application for leave to appeal and of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGES:                        WILCOX, SACKVILLE & KATZ JJ

DATE OF ORDER:       17 NOVEMBER 1999

WHERE MADE:           SYDNEY

THE COURT ORDERS THAT:

1.      Leave to appeal be granted.

2.      The appeal be dismissed.

3.      The applicant for leave pay the costs of the respondent of the application for leave to appeal and of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NG 1036 of 1998:

A 19 of 1999:

BETWEEN:                   TRANSFIELD PTY LTD (ACN 000 854 688)

                                       Applicant

AND:                              AIRSERVICES AUSTRALIA

                                        Respondent

REASONS FOR JUDGMENT

THE COURT

The Issues

1                     Two separate applications for leave to appeal from orders made by Judges of the Court have been heard together.  Since the issues raised by the applicants are important, the Court invited argument on the substantive issues raised by the foreshadowed notices of appeal.

2                     The principal question debated is whether Order 15A of the Federal Court Rules (“FCR”), insofar as it purports to empower the Court to make orders for so-called preliminary discovery, is invalid or otherwise inapplicable to the applicants.  Order 15A r 3 enables the Court to make certain orders for preliminary discovery in favour of an applicant who, having made reasonable inquiries, is unable to identify a person sufficiently for the purpose of commencing proceedings in the Court against that person.  Order 15A r 6 specifies the circumstances in which an applicant can obtain preliminary discovery of documents from a person against whom the applicant has or may have the right to obtain relief in the Court.

3                     The present applicants challenged the validity of these rules in the proceedings at first instance.  In Kirella Pty Ltd v Hooper (1999) 161 ALR 447, Tamberlin J rejected a challenge made on both constitutional and non-constitutional grounds to the validity of O 15A, rr 3 and 6.  His Honour made the order for preliminary discovery sought by the applicant in those proceedings (“Kirella”).  In Airservices Australia v Transfield Pty Ltd (1999) 164 ALR 330, Finn J rejected a challenge to the validity of O 15A, r 6 based solely on constitutional grounds.  His Honour accordingly dismissed a motion by the respondent in those proceedings (“Transfield”) seeking to dismiss the application for preliminary discovery.

4                     The unsuccessful respondents in each of the proceedings at first instance filed an application for leave to appeal from the decision of the primary Judge.  It is common ground that leave is required in both cases.  The order in Airservices v Transfield is plainly interlocutory.  It has been held by a Full Court that an order of the kind made in Kirella v Hooper is also interlocutory, on the ground that there is nothing in O 15A which necessarily prevents an unsuccessful applicant making a further application: Malouf v Malouf (1999) 86 FCR 134.

5                     The applicants in both cases were represented by Mr Brereton SC, who appeared with Mr Perram and Mr Ward.  The respondents (the applicants below) were separately represented.  However, the principal submissions supporting the validity of O 15A rr 3 and 6 were made by the Solicitor-General for the Commonwealth, Mr Bennett QC, who appeared with Mr Reynolds SC and Mr Lancaster on behalf of the Attorney-General of the Commonwealth.  The Attorney-General intervened in both applications following service of a notice of a constitutional issue as required by s 78B of the Judiciary Act 1903 (Cth).

6                     The applicants abandoned in this Court a contention, advanced at first instance in Kirella v Hooper, to the effect that O 15A, rr 3 and 6 were ultra vires the rule-making power conferred on the Judges of the Federal Court by s 59 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”).  The applicants accepted that a rule relating to preliminary discovery can properly be described as a rule “in relation to the practice and procedure to be followed in the Court”, for the purposes of s 59(1) of the Federal Court Act: see State Bank of South Australia v Hellaby (1992) 59 SASR 304 (FC), at 310-311 per King CJ, at 316 per Matheson J, at 325 per Bollen J; special leave to appeal refused (1993) 6 Leg Rep SL2.

7                     In this Court the applicants confined themselves to two arguments:

(i)                  The preliminary discovery provisions of O 15A are invalid since they give rise to no “matter” within the meaning of ss 76 and 77(i) of the Constitution. 

(ii)                Even if there is a “matter” in the constitutional sense, Parliament has not enacted a law conferring jurisdiction on the Court to determine a dispute relating to preliminary discovery.  Neither the Federal Court Act, the Judiciary Act, nor any other enactment of the Commonwealth Parliament purports to define the jurisdiction of the Federal Court with respect to any matter that embraces a claim for preliminary discovery.

Order 15A

8                     Although there is now no claim that O 15A is outside the power conferred by s 59 of the Federal Court Act, it is as well to identify the source of power for the rules relating to preliminary discovery.  Section 59(1) provides as follows:

“The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court (including the practice and procedure to be followed in Registries of the Court) and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court.”

Section 59(2) states that, in particular, Rules of Court may make provision for or in relation to (inter alia):

“(c)     interrogatories and discovery, production and inspection of documents”.

9                     Order 15A r 3 provides for what is usually designated as “identity discovery”.  It provides as follows:

“3(1)   Where an applicant, having made reasonable inquires, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called ‘the person concerned’) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may made an order under subrule (2).

(2)       The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall –

(a)       attend before the Court to be examined in relation to the description of the person concerned;

(b)       make discovery to the applicant of all documents which are or have been in the person’s or its possession relating to the description of the person concerned.

(3)       Where the Court makes an order under paragraph (2)(a), it may –

(a)       order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in the person’s or its possession relating to the description of the person concerned;

(b)       direct that the examination be held before a Registrar.”

The expression “applicant” is defined in O 15A r 1 to mean “applicant for an order under this Order”.  Order 15A r 1 defines the term “description” to include

“the name, and (as applicable) the place of residence, registered office, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding, and also whether that person is an individual or a corporation."

10                  Order 15A r 6 is headed “Discovery from a prospective respondent” and provides for what is usually known as “information discovery”.  It reads as follows:

“6.       Where –

  (a)     there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

  (b)     after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and

  (c)      there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision;

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).”

11                  An application under O 15A r 3 must, unless a Judge otherwise orders, be served personally on the person concerned: O 15A r 9(1).  Similarly, an application under O 15A r 6 must, unless a Judge otherwise orders, be served personally on the person mentioned in r 6(a): O 15A r 9(2).  An application under O 15A r 3 or r 6 must be supported by an affidavit stating the facts on which the applicant relies and specifying or describing the documents or any class of documents in respect of which an order is sought: O 15A r 9(3).

12                  The precursor to O 15A r 3 was O 4 r 17, inserted by SR No 87 of 1980, effective 1 May 1980.  Order 15A itself was inserted by SR No 54 of 1988, effective 26 April 1988.  While the language of O 15A r 3 is not identical to that in O 4 r 17, the two provisions have been treated as having substantially the same effect: Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of Vessel “Alley Cat” (1992) 36 FCR 129 (Sheppard J), at 132; Levis v McDonald (1997) 75 FCR 36 (Lindgren J), at 42.  Between 1988 and 1997, both O 4 r 17 and O 15A r 3 remained in forcedespite the obvious overlap between them.  However, O 4 r 17 was omitted  by SR No 143 of 1997, effective 23 June 1997.  Order 15A r 3 follows closely the language of Supreme Court Rules (NSW), Pt 3, r 1.  The drafting history is explained by Lindgren J in Levis, at 41-42.

13                  Prior to the introduction of O 15A in 1988, the FCR made no provision for information discovery from a prospective respondent.  O 15A r 6 follows very closely the General Rules of Procedures in Civil Proceedings 1986 (Vic), r 32.05 as it stood in 1988.  It therefore seems that the Victorian rule served as the model for O 15A r 6.

The Proceedings at First Instance

Kirella Pty Ltd v Hooper

14                  Kirella was the developer of a site at Homebush, a suburb of Sydney.  Kirella had sought approval from the local council for the rezoning of the site.  A director of Kirella became aware that newsletters had been circulated in the area that contained comments critical of the proposed development.  The newsletters referred to two organisations, but did not otherwise identify the author or publisher of the documents.  The organisations appeared to have no offices or registered records and efforts by Kirella to contact their principals were unsuccessful.

15                  Kirella instituted proceedings pursuant to O 15A against four respondents including one corporation.  They are the present applicants for leave to appeal.  There was evidence that each of the respondents had played some part in the activities of the organisations named in the newsletters.  There was also evidence that statements in the newsletters about the proposed development were false and had caused the applicant to sustain loss and damage.  A director of Kirella stated that the applicant wished to take proceedings pursuant to s 52 of the Trade Practices Act 1974 (Cth) (“TP Act”) and s 42 of the Fair Trading Act 1987 (NSW).

16                  The relief sought by Kirella included an order pursuant to O 15A r 3 that each respondent attend the Court for oral examination in relation to the identity or description of the author or publisher of the representations in the newsletters.  In addition, Kirella sought an order pursuant to O 15A r 6 that the respondents make discovery of any documents relating to the question whether Kirella had the right to seek relief from the Court.

17                  Tamberlin J first addressed the respondents’ argument that, at the stage at which preliminary discovery is sought, there is no “matter” in existence within the meaning of ss 76 and 77 of the Constitution and thus the Court can have no jurisdiction to entertain the claim.  His Honour pointed out (at [20]-[25]) that the word “matter”, as used in Chapter III of the Constitution, has been given a broad meaning.  He accepted that the expression does not include a hypothetical or abstract question, but this was not the position in these proceedings.  His Honour explained the position as follows (at [28]-[29]):

“The applicant’s case is that there has been deceptive and misleading conduct causing damage and that it has a present immediate claim to a right under the TPA and to the remedies provided in that Act. In order to enforce that right it is necessary to identify those who may be liable for the breach.  It has long been recognised in courts of equity that preliminary discovery is a useful and indeed necessary part of a court’s machinery to effectively administer justice.  A right without a remedy is a right in name only.

The present orders are sought to enable the court to exercise its jurisdiction in the administration of…justice concerning an existing right under the TPA.  The claim arises under that Act because the right to the remedy is conferred by it.…It is true that one fact, namely the identity of the appropriate respondent or respondents, is not known with certainty, and therefore legal proceedings making the substantive claim for relief have not yet been initiated under the TPA.  Nevertheless, in my view, within the principles expressed in Re Judiciary and Navigation Acts [(1921) 29 CLR 257, at 265], there is a ‘matter’ presently in existence, namely the accrued and fully constituted right to claim relief under the TPA.  The mechanism of preliminary discovery enables the court to determine and enforce that claim of right in exercise of its jurisdiction with respect to it.”

18                  In relation to the jurisdiction of the Court to grant preliminary discovery, Tamberlin J noted (at [32], [36]) that courts of equity have exercised such a power for centuries and that the Federal Court is a court of both law and equity.  His Honour considered that the investiture of jurisdiction in the Court with respect to a claim under the TP Act operates to confer all necessary or convenient incidental powers to exercise that jurisdiction, including the power to provide machinery to enable that jurisdiction to be exercised.  The preliminary discovery machinery was necessary to enable Kirella to proceed with what appeared to be a bona fide claim under the TP Act.

19                  Finally, Tamberlin J rejected the argument, not pursued in this Court, that s 59 of the Federal Court Act does not authorise a rule enabling the Court to make orders in the nature of preliminary discovery.  Nor did his Honour consider that O 15A purported to confer jurisdiction on the Court in breach of s 19 of the Federal Court Act (which provides that the Court has such original jurisdiction as is vested in it by laws made by the Parliament).  The relevant “matter” in respect of which jurisdiction is conferred in accordance with s 19 is the enforcement of a claim of right with respect to statutory breaches arising under the TP Act.

Airservices Australia v Transfield Pty Ltd

20                  The applicant in the proceedings at first instance (“Airservices”) had dealings with Transfield, in the course of which it provided Transfield with commercially confidential information relating to the provision of rescue and fire-fighting services.  Airservices alleged that the provision of this information should have resulted in its being engaged as a sub-contractor to Transfield in the event (as turned out to be the case) that Transfield successfully tendered for the provision of these services to the Department of Defence.  The responsible officer of Airservices gave evidence that if Transfield had misused the commercial information provided to it and had failed to engage Airservices, the latter had the right to seek relief under the TP Act.  Neither the evidence nor the judgment of Finn J identifies precisely the cause of action said to arise, but it clearly enough involves a claim for damages under s 82 of the TP Act by reason of misleading or deceptive conduct on the part of Transfield in contravention of s 52 of the TP Act.

21                  Airservices claimed that it did not have sufficient information to enable a decision to be made as to whether to commence proceedings claiming relief under the TP Act.  It sought orders pursuant to O 15A r 6, requiring Transfield to produce tenders submitted by it to the Department of Defence and related documents.  Transfield filed a motion seeking to dismiss the application on the ground that O 15A r 6 did not validly confer jurisdiction or power on the Court to make an order for information discovery.  Finn J approached the motion on the assumption that Airservices would be able to satisfy the requirements of pars (a), (b) and (c) of O 15A r 6.

22                  Finn J agreed with Tamberlin J’s holding that O 15A was a valid exercise of rule-making power by the judges.  His Honour also considered that Transfield’s constitutional argument was “misconceived”.  He said this (at [24]):

“The events giving rise to the prospective claim have occurred and they provide reasonable cause to believe that [Airservices] has or may have a right to obtain relief against Transfield under the TP Act.  This Court clearly has jurisdiction to determine whether those events actually have given rise to a right in [Airservices], a liability in Transfield, under the TP Act these being questions arising under a law made by the Commonwealth Parliament: Constitution s 76(ii).  A claim properly initiated with that object in mind would be one seeking the establishment of an actual right and liability by the court and not merely an advisory opinion (cf  Re Judiciary and Navigation Acts…); it would relate to an apprehended wrong for which the law provides a remedy (cf Abebe v Commonwealth (1999) 162 ALR 1 at 11-12); it would not involve merely a hypothetical question: cf Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at 413ff.  I would add that the court’s jurisdiction in relation to that matter would not depend upon the applicant actually being successful in establishing its right, or for that matter in commencing a proceeding that disclosed a reasonable cause of action: cf O 20 r 2 of the Federal Court Rules.”

23                  Finn J observed that the “real question” in the case was not whether there was a matter in the constitutional sense, but how the jurisdiction of the Court had been enlivened.  He considered that the answer to that question depends on whether preliminary discovery of the type envisaged by O 15A r 6 is an incident of the exercise of judicial power in relation to the matter.  Preliminary discovery had long been accepted as an appropriate precursor to the making of a substantive claim.  While in form the equitable procedure was a discrete proceeding, its function was to assist in determining the rights of the parties inter se on the substantive application.  An order for preliminary discovery under O 15A was therefore an unexceptionable exercise of judicial power when made in relation to the matter necessitating the making of the order.

Preliminary Discovery in Equity

24                  The bill of discovery has a long history in equity, although its role in preliminary discovery seems largely to have fallen into disuse between the decision in Orr v Diaper (1876) 4 Ch D 92 and the revival of the procedure in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; cf Heimann v Commonwealth (1935) 54 CLR 126 (Evatt J), at 133. 

25                  As Young J explained in McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, at 644, in the absence of a discovery process in common law courts, Chancery permitted a plaintiff to file a bill of discovery which claimed no relief except that the defendant provide the information sought.  Bray, Principles and Practice of Discovery (1885) described the procedure as follows (at 611-612):

“A bill of discovery must be filed in aid of some proceedings either pending or intended, and there must be allegations to that effect: a court of equity did not compel discovery for the mere gratification of curiosity: Cardale v Watkins [(1820)] 5 Madd 18.  In a bill for discovery it was necessary for the plaintiff to show by his bill a case in which a court of equity would assume a jurisdiction for the mere purpose of compelling a discovery.  This jurisdiction was exercised to assist the administration of justice in the prosecution or defence of some other suit either in the court itself or in some other court.  The discovery must be material to some suit instituted or capable of being instituted.

A party might file a bill of discovery before he commenced his action, where he required discovery in order to ascertain what form of action to bring…or in order to ascertain the proper person against whom to bring the action.” [Some citations omitted.]

As to the objections that a defendant could make to a bill of discovery, see Bray, at 614-617.  See also Story, Commentaries on Equity Jurisprudence (1^st English ed, 1884), §§ 1483 ff; Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (5^th ed 1847), at 64-67.

26                  In Norwich Pharmacal, the House of Lords upheld an order made at first instance requiring the Customs and Excise Commissioners to provide the names and addresses of importers of a chemical compound of which Norwich held the patent.  Lord Reid identified the “very reasonable principle” established by the authorities as follows (at 175):

“if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.  I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did.  It may be that if this causes him expense the person seeking the information ought to reimburse him.  But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

The requirement that the person be “mixed up” in the tortious acts of others was said to flow from the so-called “mere witness” rule, which historically has been thought to prevent a court ordering discovery against a mere witness.  See also at 180-181, per Lord Morris; at 188, per Viscount Dilhorne; at 197, per Lord Cross.

27                  Norwich was a case of identity discovery.  It has been applied in subsequent cases in the United Kingdom and elsewhere, including Australia: British Steel Corporation v Granada Television Ltd [1981] AC 1096; X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1; Re Pyne [1997] 1 Qd R 326 (Shepherdson J); Glaxo Wellcome PLC v Minister of National Revenue (1998) 81 CPR (3d) 372 (Fed Ct App). 

28                  In McLean, Young J expressed (at 645) the view that the principle in Norwich Pharmacal was limited to identity discovery.  As such, it was of limited value in New South Wales because the Supreme Court Rules made provision for identity discovery in broad terms (Pt 3, r 1, which is in similar terms to FCR, O 15A r 3).  The same view was expressed by Sheppard J in The “Alley Cat”, at 139.  Other cases suggest, however, that the scope of preliminary discovery under the general law may not be so limited and may extend to information discovery: Mercantile Group (Europe) AG v Aiyela [1994] QB 366, at 374-375, per Hoffmann LJ (referred to with apparent approval by Gummow J in Breen v Williams (1996) 186 CLR 71, at 120); P v T Ltd [1997] 1 WLR 1309 (Sir Richard Scott V-C); Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, at 445-446, per Gummow J.

29                  As Finn J pointed out in the present case (at [11]), except in New South Wales, Queensland and Tasmania, Rules of Court have obviated the need to resort to the equitable bill both for identity discovery and information discovery: General Rules of Procedure in Civil Proceedings 1986 (Vic), rr 32.03, 32.05 (in terms substantially the same as FCR, O 15A rr 3 and 6); Supreme Court Rules 1987 (SA), rr 60.01, 60.02; Supreme Court Rules (ACT), O 34A, rr 3, 5; Supreme Court Rules (NT), rr 32.03, 32.05; Supreme Court Rules (WA), O 26A, rr 3, 4 and 5.  In New South Wales, provision is only made for identity discovery: Supreme Court Rules (NSW), Pt 3, r 1.

The Scope and Operation of Order 15A

30                  Whatever the scope of general law preliminary discovery, O 15A, in terms, specifically provides for both identity and information discovery.  Moreover, it departs from the general law in some important respects, for example by rejecting the “mere witness” principle in O 15A r 3.  Before considering the applicants’ arguments, it is convenient to consider the scope and operation of O 15A rr 3 and 6.

Order 15A r 3

31                  An applicant for relief under O 15A r 3 must show that, after having made reasonable inquiries, he or she is unable to ascertain the description of a person sufficientlyfor the purpose of commencing a proceeding against that person.  Order 15A r 3 plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her.

32                  Secondly, the applicant must show that “some person” has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent.  The rule is therefore available even if relief is sought against a person who is in no way implicated in the wrongful conduct of which the applicant complains.  In other words, relief is available against a “mere witness” or bystander: Stewart v Miller [1979] 2 NSWLR 128 (Sheppard J), at 135 (a decision on the New South Wales rule).  To this extent, the rule differs from the equitable bill of discovery.

33                  Thirdly, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v McDonald, at 41, 44; Stewart v Miller, at 139-140.  Nonetheless, the power conferred by O 15A r 3 is not to be used in favour of a person who intends to commence “merely speculative proceedings”: Stewart v Miller, at 140; Levis v McDonald, at 44.  A material factor in the exercise of the Court’s discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue: Exley v Wyong Shire Council, unreported, 10 December 1976, Master Allen, noted Ritchie’s Supreme Court Procedure (NSW) par [13,004].

34                  Fourthly, the High Court has emphasised that an applicant under a rule in the form of O 15A r 3 must show that the order sought is necessary in the interests of justice.  That is, the applicant must show that

“the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains”.

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, at 357.  These observations emphasise the link between identity discovery and the applicant’s complaint that he or she has suffered from an actionable wrong.

Order 15A r 6

35                  The power conferred by O 15A, r 6, if valid, is to be construed beneficially as befits remedial legislation: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 (Burchett J), at 733.  Within this framework, there are some features of the rule that are important for present purposes.

36                  First, unlike identity discovery under O 15A r 3, information discovery under O 15A r 6 is available only against the person in respect of whom there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court.  That person must be someone whose description has been ascertained.

37                  Secondly, it follows from the language of O 15A r 6 that the rule can apply only before substantive proceedings have been instituted.  After proceedings have commenced, the rule ceases to apply: Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 (Tamberlin J), at 484.

38                  Thirdly, an applicant must satisfy each of the three conditions specified in pars (a), (b) and (c) of O 15A r 6 in order to obtain an order for information discovery.

39                  Fourthly, O 15A r 6(a) poses an objective test, namely whether there is reason to believe that the applicant has or may have the right to obtain relief from the prospective respondent: Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 (Sackville J), at [28].  While it is not necessary for the applicant to demonstrate a prima facie case, it is not enough merely to assert that there is a case against the prospective respondent: CCA Beverages (Adelaide) Limited v Hansford (unreported, 15 November 1991, O’Loughlin J), at 12.

40                  Fifthly, an order may be made in favour of an applicant who already has available evidence establishing a prima facie case for the granting of relief: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996, Lindgren J), at 33.  But the applicant, after having made all reasonable inquiries, must not have sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain relief against the prospective respondent (see par (b)).  The absence of sufficient information is to be assessed objectively: Alphapharm, at 31.

Constitutional and Statutory Framework

41                  Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court of Australia, such other federal courts as the Parliament creates and such other courts as it invests with federal jurisdiction.  Section 75 specifies the constitutionally conferred original jurisdiction of the High Court.  Section 76 provides that the Parliament may make laws conferring original jurisdiction on the High Court, inter alia, in any matter

“(ii)     Arising under any laws made by Parliament.”

Section 77, provides, relevantly, as follows:

“With respect to any of the matters mentioned in the last two sections the Parliament may make laws –

(i)                 Defining the jurisdiction of any federal court other than the High Court”.

42                  The Federal Court of Australia is created by s 5(1) of the Federal Court Act.  The Court is a superior court of record and is a court of law and equity: s 5(2).  Section 19(1), referred to earlier, provides as follows:

“19(1)  The Court has such original jurisdiction as is vested in it by laws made by the Parliament.”

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders as the Court thinks appropriate: s 23.

43                  The TP Act contains, in s 86(1), a specific conferral of jurisdiction on the Federal Court:

“86(1)  Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part.”

44                  The Judiciary Act 1903 (Cth) confers original jurisdiction on the Federal Court.  Section 39B(1A), added by the Law and Justice Legislation Amendment Act 1997 (Cth) which commenced on 17 April 1997, provides as follows:

“(1A)  The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)               …; or

(b)               …; or

(c)               arising under any laws made by the Parliament.”

Is There a “Matter”?

The Principles

45                  The applicants’ first contention is that, even if Parliament has purported to confer jurisdiction on the Court to resolve the claims for preliminary discovery, the conferral of jurisdiction is invalid since there is no “matter” in respect of which jurisdiction can be conferred.  The argument takes as its starting point the proposition that s 77(i) of the Constitution empowers Parliament to define the jurisdiction of the Federal Court only with respect to any of the “matters” mentioned in ss 75 and 76 of the Constitution. It is then said that an application for preliminary discovery cannot constitute a “matter” in the constitutional sense.  This follows, so it is argued, from the proposition that there can be no “matter” until a legal proceeding which defines the dispute and identifies the claim for the relevant remedy has been instituted.  At the time each application for preliminary discovery was instituted (and, in the case of Kirella v Hooper, determined) no proceedings for substantive relief had been on foot in the Court.

46                  The applicants also say that the constitutional issue is to be approached without reference to notions of perceived convenience.  They point out that in Re Wakim; Ex parte McNally (1999) 163 ALR 270, the majority of the High Court rejected assertions of “convenience” or “efficiency” as a basis for supporting the validity of challenged legislation: see at [2], per Gleeson CJ; at [35]-[39], per McHugh J; at [121], [126], per Gummow and Hayne JJ (with whom Gaudron J agreed).  Thus the applicants contend that it is beside the point that preliminary discovery may provide a convenient means of assisting an applicant who has insufficient information to ascertain whether proceedings should be instituted against a particular person, or who is uncertain of the identity of the person against whom a claim for relief should be made.  Similarly, they say it is beside the point that preliminary discovery under O 15A has many parallels to the old and established practices of courts of equity.  The only touchstone is the language of the Constitution.

47                  The applicants’ argument assumes that the only matter in respect of which the Court can have jurisdiction to make orders for preliminary discovery is that constituted by the underlying controversy between the parties (for example, the claim by Kirella against the prospective respondents for relief under the TP Act).  In other words, the argument assumes that a claim for preliminary discovery is not itself independently capable of constituting a “matter”.  It is convenient to proceed on the basis that the assumption is correct.

48                  In Abebe v Commonwealth (1999) 162 ALR 1, Kirby J remarked (at [215]) that “[t]he meaning of the word ‘matter’ is elusive”, notwithstanding that the word has the same meaning in each of the sections of Chapter III in which it is used: In re Judiciary and Navigation Acts (1921) 29 CLR 257, at 266.  One reason for the elusiveness of the constitutional expression is that it has significance in a variety of settings.  In cases such as Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, the meaning of “matter” was considered in the context of determining whether a grant of jurisdiction to the Federal Court carried with it authority to resolve non-federal claims joined with a federal claim in the proceedings.  In Abebe, the question was whether Parliament has power to invest the Federal Court with jurisdiction to determine part only of the whole controversy between the parties.  In Re Judiciary and Navigation Acts, the High Court had to consider whether the expression “matter” embraced the purported grant of jurisdiction to the Court to provide what was in effect an advisory opinion.  It is perhaps not surprising that the language used in the various judgments in these cases reflects the particular issues requiring resolution: see Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22, at 37.

49                  This point is of some importance because the applicants relied on particular observations made in judgments of the High Court without necessarily paying sufficient attention to the context in which the observations were made.  They invoked, for example, the comment in Re Judiciary and Navigation Acts (at 265) that

“there can be no matter within the meaning of [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court”.

Similarly, they cited the observation of Gleeson CJ and McHugh J in Abebe (at [25]) that

“the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a ‘matter’ for constitutional purposes”.

Each observation was said to demonstrate that the constitutional concept of a “matter” makes sense only if proceedings for substantive relief have already been instituted.

50                  The applicants’ submission fails to take account of the fact that the cases, including Re Judiciary and Navigation Acts and Abebe, clearly distinguish between a “matter” and the legal proceeding in which the matter might be determined.  Well before the decision in Re Judiciary and Navigation Acts, Griffith CJ said (in South Australia v Victoria (1911) 12 CLR 667, at 675) that the

“word ‘matters’ was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice.” (Emphasis added.)

That very passage, distinguishing between a controversy and the proceedings in which the controversy might be resolved, was quoted by Gleeson CJ and McHugh J in Abebe, at [24].  That their Honours did so is hardly surprising since the joint judgment in Fencott v Muller had earlier quoted Griffith CJ’s comment, noting (at 603) that the

“concept of ‘matter’ as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris.” (Emphasis added.)

See also Philip Morris, at 507, per Mason J; Crouch v Commissioner for Railways, at 37 (joint judgment); Croome v Tasmania (1997) 191 CLR 119, at 124-125, per Brennan CJ, Dawson and Toohey JJ.

51                  The seminal passage in Re Judiciary and Navigation Acts also rejects the proposition that a matter, in the constitutional sense, is co-extensive with a legal proceeding.  The passage is as follows (at 265-266):

“It was suggested in argument that ‘matter’ meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large.  We do not accept this contention; we do not think that the word ‘matter’ in sec 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding.  In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.  If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one.  But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law.”

The reference to an “immediate right, duty or liability” was used by the Court to distinguish a genuine controversy from a desire to obtain an advisory opinion from the Court divorced from such a controversy.  It was not intended to, and cannot be read as, denying the existence of a matter unless proceedings claiming substantive relief have been instituted.

52                  The essence of a “matter” in the constitutional sense is what was described in Fencott v Muller (at 608) as a “single justiciable controversy”.  As was said in the joint judgment:

“[w]hat is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships.”

53                  Of course, if a controversy is the subject of existing proceedings claiming substantive relief the scope of the controversy (or “matter”) is likely to depend, in part, on what the parties allege in the pleadings and how they have conducted the litigation: Abebe, at [139], [145], per Gummow and Hayne JJ.  But that does not mean that unless a party has instituted proceedings claiming substantive relief there can be no matter in respect of which jurisdiction can be conferred on the Federal Court.  It is the justiciable controversy which constitutes the matter.  That controversy may or may not be co-extensive with legal proceedings already instituted.

54                  It follows, for example, that a single matter may be resolved in two separate proceedings.  Thus in The Queen v Murphy (1985) 158 CLR 596, it was held that a single matter, namely a claim or charge that a person has committed an offence against a law of the Commonwealth, can be determined by a curial process consisting of a committal proceeding and, if an order for commitment is made, the trial which follows presentation of an indictment: see at 617, per curiam; Re Wakim, at [138], per Gummow and Hayne JJ.  Similarly, the fact that separate proceedings are commenced against separate parties, is not necessarily inconsistent with the existence of a single controversy or matter, if the various proceedings arise out of the one set of events and raise related issues: Re Wakim, at [142]-[145].

55                  In determining whether there is a “subject matter for determination in a legal proceeding” in respect of which Parliament can define the jurisdiction of a federal court, it is doubtless necessary for the relevant matter to be capable of identification. Doubtless, too, there can be no matter unless a claim is made that can be seen to involve “an immediate right, duty or liability to be established by the determination of the Court”.  But it is only a claim (with the necessary federal elements) that is necessary.  A matter can exist even though a right, duty or liability has not been established and, indeed, may never be established: Abebe, at [32], per Gleeson CJ and McHugh J.  It is for this reason that the Federal Court may have jurisdiction in respect of a matter, even though the only federal element of the matter has failed: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 (FC), at 218-219; Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 (FC), at 481-482 (where the federal claim was struck out).

The Present Cases

56                  Kirella’s claim satisfied the requirements for a “matter”.  It asserted a claim under the TP Act in the course of the preliminary discovery proceedings instituted in this Court.  Kirella adduced evidence establishing that it intended to institute proceedings under the TP Act in respect of what it alleged were misleading or deceptive representations made or published by a person or persons it could not positively identify.  It sought orders under O 15A r 3 intended to enable it to identify the person or persons against whom it considered it had a cause of action under the TP Act. Orders were also sought and granted under O 15A r 6 against the respondents, presumably (although this is not expressly dealt with in Tamberlin J’s judgment) on the basis that Kirella had shown that there was reasonable cause to believe that it had or might have the right to obtain relief against them in the Court.  (The judgment does not address the question of whether relief can be obtained against the same respondents under both O 15A rr 3 and 6.  However, this issue has not been raised on the application for leave to appeal.)

57                  The justiciable controversy constituting a “matter” was Kirella’s claim to be entitled to the relief provided by the TP Act for the misleading and deceptive conduct by the publisher or publishers of the newsletters, in contravention of s 52 of the TP Act.  Whatever ambiguities might attend the expression “immediate right, duty or liability” used in Re Judiciary and Navigation Acts, it is clear that Kirella’s claim was to enforce an immediate right to relief against the alleged wrongdoers and, equally, to establish their liability.  The claim arose out of events which had already occurred and there could be no question of Kirella’s standing to pursue the claim.  Moreover, the claim was one that could be established by a determination of the Court made in due course by reference to legal rules, principles and standards: Abebe, at [25], per Gleeson CJ and McHugh J.

58                  The relief sought by Kirella was directly related to the justiciable controversy between itself and the respondents joined in the preliminary discovery proceedings.  Kirella sought orders to enable it to identify the person or persons against whom it had a claim under the TP Act and to determine whether it should commence proceedings against the named respondents.  The relief sought was (and had to be) incidental to the justiciable controversy, in that it was designed to assist Kirella to pursue its claimed right to substantive relief against the named respondents or other publishers of the newsletters.

59                  It is true that Kirella might never institute proceedings claiming substantive relief under the TP Act.  It might emerge, for example, that none of the respondents was responsible for preparing or distributing the offending newsletters.  The true author or publisher of the newsletters might never be identified.  Kirella might take the view that it cannot establish that any of the respondents had been acting in trade or commerce if they did publish the newsletters. There may be other reasons why Kirella does not proceed.  None of this alters the fact that it has asserted a claim arising under a law of the Parliament and, indeed, has done so in proceedings instituted in the Court.  As The Queen v Murphy shows, no difficulty is occasioned by the fact that different aspects of the justiciable controversy may be dealt with in separate proceedings in the Court (indeed in proceedings in separate courts), one of which might effectively terminate the dispute.

60                  A similar analysis applies to Airservices’ claim against Transfield.  Airservices asserted that if Transfield had misused the commercial information supplied to it, Airservices had a cause of action against it under the TP Act. In order to succeed in its claim for information discovery under O 15A r 6, Airservices had to establish that it had reasonable cause to believe that it had or might have a right to obtain relief against Transfield under the TP Act.  Finn J approached the application on the assumption that Airservices could satisfy this requirement.

61                  The claim asserted by Airservices against Transfield was one that rested on an immediate right or liability, and arose out of events which had already occurred.  It is true that Airservices had insufficient information to enable it to make a decision on whether or not to commence proceedings.  But that lack of information, which Airservices sought to remedy in the preliminary discovery proceedings, does not detract from the fact that it had asserted a claim against Transfield under the TP Act.  Nor does it alter the fact that the claim was and is capable of determination in the Court.  It short, this was a justiciable controversy between Airservices and Transfield, and the relief sought by Airservices in the preliminary discovery proceedings would assist it to pursue its claim to substantive relief in the Court. 

Is Jurisdiction Conferred on the Court to Make Orders for Preliminary Discovery?

62                  The applicants’ second submission was that the Commonwealth Parliament had not conferred jurisdiction on the Federal Court to make orders for preliminary discovery under FCR, O 15A.  The submission, as developed in oral argument by Mr Brereton, can be summarised as follows:

1.                  The Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament: Federal Court Act, s 19.

2.                  Section 86(1) of the TP Act confers jurisdiction on the Court in matters arising under that Act.  However, s 86(1) is couched in restrictive language and confers jurisdiction only in a matter in respect of which a civil proceeding has been instituted under Part VI.  Since neither Kirella nor Airservices had instituted a proceeding under Part VI, s 86 could not operate as a conferral of jurisdiction to make orders for preliminary discovery in relation to a matter arising under the TP Act.  Section 163A of the TP Act, which confers additional jurisdiction on the Court to make declarations and certain other orders in relation to a matter arising under the TP Act, carries the position no further.

3.                  Section 39B(1A) of the Judiciary Act, which provides that the original jurisdiction of the Court extends to “any matter…arising under any laws made by Parliament”, should not be read as extending the jurisdiction of the Court in matters under the TP Act.  Section 86 of the TP Act is a specific, defined grant of jurisdiction, and to read s 39B(1A) of the Judiciary Act as enlarging that grant would be inconsistent with the intent of Parliament.  A general enactment, such as s 39B(1A) of the Judiciary Act, should not be read as interfering with or detracting from a more specific and limited provision.

63                  As was pointed out in oral argument, it follows from this submission (assuming it to be correct) that, although the Court does not have jurisdiction to order preliminary discovery in a matter arising under the TP Act, nonetheless it might have jurisdiction to order preliminary discovery in other cases.  It might do so, for example, if the conferral of jurisdiction on the Court effected by a particular enactment is wide enough to embrace the making of an order for preliminary discovery: cf Patents Act 1990 (Cth), s 154(1); Copyright Act 1968 (Cth), s 131C.  The applicants’ argument on jurisdiction therefore does not result in O 15A being invalid, but it would prevent Kirella or Airservices successfully invoking O 15A.

64                  Section 71 of the Constitution does not, of itself, confer jurisdiction on the Federal Court.  The Court’s jurisdiction must be conferred and defined by the exercise of the legislative power conferred on Parliament by s 77(i) of the Constitution.  Moreover, subject to limited exceptions, the Federal Court Act does not confer jurisdiction on the Court: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 161.  Section 19 of the Federal Court Act makes it clear that, generally speaking, the conferral of jurisdiction on the Court is to be achieved by other legislation.  The principal exceptions are s 32 of the Federal Court Act, which confers jurisdiction in respect of matters associated with matters in respect of which the Court’s jurisdiction is invoked, and s 24, which confers jurisdiction to hear and determine appeals.  (See also s 31, dealing with the Court’s power to punish contempt: cf Re Colina; Ex parte Torney [1999] HCA 57, at [16], per Gleeson CJ and Gummow J; at [43], [50], per McHugh J; and [113], per Hayne J.)

65                  In PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863, Gaudron J identified (at 865), in general terms, three distinct sources of jurisdiction of the Federal Court, namely

(i)                  specific statutory provisions, of which ss 86 and 163A of the TP Act are examples;

(ii)                the associated jurisdiction conferred by s 32 of the Federal Court Act; and

(iii)               the cross-vesting legislation, such as the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).

66                  Since her Honour delivered judgment in PCS Operations v MUA, the cross-vesting legislation of the States, insofar as it purports to invest jurisdiction in the Federal Court in State matters, has been held to be invalid: Re Wakim.  However, a further general source of jurisdiction for the Court (although not in non-federal matters) is s 39B(1A) of the Judiciary Act introduced in 1997.  An Explanatory Memorandum accompanying the Law and Justice Legislation Amendment Bill 1997 (Cth) explained the purpose of s 39B(1A) (which also gives the Federal Court jurisdiction to hear matters in which the Commonwealth seeks an injunction or declaration, or those which arise under or involve the interpretation of the Constitution) as follows:

“118.   The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts in civil matters.  The jurisdiction gives the Federal Court a greater role in administration of federal laws, by ensuring that the Court is able to deal with all matters that are of an essentially federal nature.

119.          This amendment is not intended to confer jurisdiction on the Federal Court that has been expressly proscribed by other federal legislation.” (Emphasis added.)

67                  The Explanatory Memorandum reinforces what the language of s 39B(1A)(c) in any event suggests, namely that the paragraph was intended to enable the Court to deal with all matters of an essentially federal nature except where jurisdiction has been “expressly proscribed”.  The exception obviously covers provisions such as s 485 of the Migration Act 1958 (Cth), which deprives the Federal Court of jurisdiction in respect of certain decisions other than that conferred by other specified sections.  But is the operation of s 39B(1A) of the Judiciary Act to be qualified in matters arising under the TP Act because of the form of the conferral of jurisdiction effected by s 86(1) of the TP Act?

68                  In answering this question it is of some importance that s 86(1) of the TP Act operates as a positive conferral of jurisdiction on the Court in matters arising under the TP Act.  While it is framed by reference to proceedings instituted under Part VI of the TP Act, it contains neither an “express proscription” nor an implied proscription on the Court exercising additional jurisdiction in matters under the TP Act, should Parliament choose to confer such jurisdiction on the Court.  That additional jurisdiction might be conferred on the Federal Court is shown by s 163A of the TP Act.  (Section 163A in its initial form was inserted in the TP Act in 1976, at a time when s 86(1) conferred exclusive jurisdiction on the Federal Court to hear and determine actions, prosecutions and proceedings under Part VI.  Section 86 was subsequently amended so as to confer concurrent jurisdiction on State and Territory courts in certain matters arising under Parts IVA, IVB and V of the TP Act: see now s 86(2).)

69                  By enacting s 39B(1A)(c) of the Judiciary Act, Parliament plainly intended to confer a broad supplementary jurisdiction on the Court in matters arising under laws made by the Parliament.  As the Explanatory Memorandum states, s 39B(1A) is not intended to apply where the effect would be to overturn an express proscription contained in the legislation conferring specific jurisdiction on the Court.  No doubt there will also be cases where the legislation contains or should be interpreted as containing an implied proscription on the Court exercising jurisdiction of a particular kind.  But s 86(1) of the TP Act is not legislation of this kind.

70                  It is true that s 86(1) does not expressly advert to the possibility that a matter might arise under the TP Act otherwise than in the context of a proceeding instituted under Part VI.  However, that failure, as the Solicitor-General for the Commonwealth suggested, is best described as a casus omissus, rather than an expression of a legislative policy that ancillary procedures such as preliminary discovery should not be available in the Federal Court in matters arising under the TP Act.  It is difficult to think of any reason why Parliament would wish or intend to curtail the grant of general jurisdiction to the Court contained in s 39B(1A) so as to exclude jurisdiction to make orders in the nature of preliminary discovery in a matter arising under the TP Act.

71                  Mr Brereton argued that, if s 39B(1A) of the Judiciary Act were not read down as the applicants suggested, the Federal Court might have jurisdiction, for example, in all matters arising under the Family Law Act 1975 (Cth).  This, he contended, could not have been the intention of the drafter of s 39B(1A).  This argument perhaps overlooks the fact that the Federal Court already has jurisdiction in relation to proceedings in the Family Court which are transferred to it pursuant to s 5(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth): see s 9(2).  (The decision in Re Wakim does not appear to affect these provisions.)  In any event, the interaction between s 39B(1A) and the jurisdictional provisions of the Family Law Act 1975 (Cth) (see ss 31, 32, 39, 69H) may raise considerations not present in this case.  They are better left for an occasion on which they arise for decision.

72                  Mr Brereton also relied on Thomson v Trade Practices Commission to support the contention that s 39B(1A) of the Judiciary Act cannot constitute a source of jurisdiction for the Federal Court to make orders for preliminary discovery.  In Thomson, a majority of the High Court held that the Federal Court lacks jurisdiction in relation to a claim based on alleged contravention of s 45 of the TP Act to grant an injunction in circumstances other than those specified in the TP Act itself.  The majority decided that the jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for orders of the kind specified in s 80 of the TP Act (at 163).

73                  Thomson supports the applicants’ case to the extent that it confirms that s 86(1) is not a self-contained grant of jurisdiction, but operates by reference to proceedings for which provision is made elsewhere in Part VI of the TP Act (at 162).  However, Thomson does not address the question whether a grant of jurisdiction in the general terms of s 39B(1A) of the Judiciary Act should be read down in the manner suggested by the applicants.  It therefore does not stand in the way of the conclusion that s 39B(1A) of the Judiciary Act confers jurisdiction on the Federal Court in matters arising under the TP Act additional to that conferred by s 86(1) of the TP Act.

74                  As we followed Mr Brereton, he did not dispute that if s 39B(1A) of the Judiciary Act operates in the manner we have described, the jurisdiction so conferred is sufficient to enable the Court to make orders for preliminary discovery in accordance with O 15A.  In any event, we consider that s 39B(1A) does have that operation.  It confers jurisdiction “in any matter…arising under any laws made by the Parliament”.  The relevant matter in each case, as we have explained, is the claim by the applicant to be entitled to relief under the TP Act.  An application for preliminary discovery under O 15A, like the comparable procedure in equity, is intimately connected with the judiciable controversy constituting the matter.  This is because the application, if successful, enables the applicant either to identify the appropriate respondent against whom proceedings should be instituted, or to obtain documents relating to the question of whether the applicant has a right to obtain substantive relief and which assist in determining whether proceedings under the TP Act should be instituted.

75                  It follows that the Court, in each of the proceedings at first instance, had jurisdiction to make the orders authorised by FCR, O 15A rr 3 and 6.  Since s 39B(1A) of the Judiciary Act only came into force in April 1997, our reasoning does not address the question of whether the Court had jurisdiction prior to that date to make orders for preliminary discovery under O 15A: cf Arnhem Land Aboriginal Land Trust v Minister for Mines and Energy for the Northern Territory (1997) 78 FCR 556 (O’Loughlin J), at 564-565.  It is, however, not necessary to consider that question in these proceedings.

Conclusion

76                  Having regard to the importance of the issues raised by the applications for leave to appeal, the Court grants leave in each case.  However, each appeal should be dismissed.  The applicant or applicants for leave in each case should pay the costs of the respondent.  The order should cover the costs of the application for leave to appeal and of the appeal.

Associate:

Dated:              17 November 1999

Counsel for the Respondent in

A 19 of 1999:                                Mr J D Hammond

Solicitor for the Respondent

in A 19 of 1999:                            Freehill Hollingdale & Page

Counsel for the Intervenor:             Mr D M J Bennett QC SG with Mr G Reynolds SC and Mr

     R Lancaster

Solicitor for the Intervenor:             Australian Government Solicitor

Date of Hearing:                            27 August 1999

Date of Judgment:                          17 November 1999