FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
1. The amended originating application is dismissed for want of jurisdiction.
2. The applicant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 In his foreword to Professor Geoffrey Lindell’s book, Cowen and Zines’s Federal Jurisdiction in Australia (4th Edition, The Federation Press, 2016), Sir Anthony Mason described how “[t]he very mention of “federal jurisdiction” is enough to strike terror in the hearts and minds of Australian lawyers who do not fully understand arcane mysteries”. This case well illustrates that point.
2 For the following reasons, the Court does not have jurisdiction to entertain the applicant’s claims. There is no matter which attracts federal jurisdiction.
The applicant’s claims
3 The applicant is the father of a young girl who was tragically killed when, on 31 December 2017, she was on a chartered seaplane flight which crashed shortly after taking off from Cottage Point for the return flight to Rose Bay. The pilot and all five passengers were killed.
4 It is important to note for the purposes of the issue of jurisdiction that the flight was entirely within New South Wales.
5 By an amended originating application and amended statement of claim (both dated 10 February 2020), the applicant claims damages pursuant to ss 28, 31 and 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (Cth CACL Act), “as incorporated by” s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) (NSW CACL Act). The applicant contends that he suffered nervous shock and that the respondent is strictly liable under the provisions of the Cth CACL Act and the NSW CACL Act for his loss and injuries sustained as a result of his daughter’s death.
6 In the relief section of the amended statement of claim dated 10 February 2020, there is an explicit claim for damages pursuant to s 31 of the Cth CACL Act (this is difficult to understand given that s 31 imposes a limitation of liability, whereas a carrier’s liability in respect of the carriage of a passenger in an aircraft as specified in s 27 is imposed by s 28). There is no equivalent explicit claim in the amended originating application dated 10 February 2020. It contains a claim for damages without reference to any source for any such liability.
7 It should be noted that the proceedings were initially commenced shortly before a statutory two year limitation period expired.
8 The respondent contends that the applicant’s proceedings fail to enliven any element of federal jurisdiction and that, accordingly, the proceedings should be dismissed.
9 The parties agreed that this challenge to jurisdiction should be heard and determined first and they agreed that this should occur by way of a determination on the papers and without an oral hearing. Each party has provided submissions in support of their respective positions on jurisdiction. I shall address the primary submissions in my reasons explaining why I uphold the respondent’s challenge to jurisdiction.
Commonwealth and State legislation summarised
10 The Cth CACL Act is the Commonwealth’s legislative response to the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) (the Warsaw Convention).
11 As Gordon J explained in Parkes Shires Council v South West Helicopters Pty Ltd  HCA 14; 367 ALR 1 at , the scheme by which the Warsaw Convention and its successors is given effect in Australian municipal law has the following three inter-connected limbs (emphasis added):
(a) Conventions are given the force of law in Australia with respect to international air carriage;
(b) elements of the Conventions are restated by separate provisions in the Cth CACL Act, including in Pt IV with respect to domestic, inter-State air carriage; and
(c) Pt IV is then applied to intra-State air carriage by State legislation.
12 Her Honour emphasised at  that certain provisions of Pt IV of the Cth CACL Act are applied to the carriage by air of a passenger within a given State (not being carriage to which the Conventions or Pt IV of the Cth CACL Act applies) by the operation of State legislation. In New South Wales that is achieved by the NSW CACL Act.
13 Returning now to the Cth CACL Act, Pt IV deals with “Other carriage to which this Act applies”.
14 Section 26 contains various definitions. For the purpose of determining the jurisdictional issue, it is important to note the relevant parts of ss 27, 28, 31 and 35 of the Cth CACL Act.
27 Application of Part
(1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger:
(a) between a place in a State and a place in another State;
(b) between a place in a Territory and a place in Australia outside that Territory;
(c) between a place in a Territory and another place in that Territory; or
(d) between a place in Australia and a place outside Australia;
not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies.
(3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be.
15 Section 28 provides:
28 Liability of the carrier for death or injury
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
16 Section 31 relevantly provides:
31 Limitation of liability
(1) Subject to the regulations relating to passenger tickets, the liability of a domestic carrier under this Part in respect of each passenger, by reason of his or her injury or death resulting from an accident, is limited to:
(a) where neither paragraph (b) nor paragraph (c) applies - $725,000;
17 Section 35 provides:
35 Liability in respect of death
(1) The provisions of this section apply in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death).
(2) Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.
(3) Subject to the next succeeding subsection, the liability is enforceable for the benefit of such of the passenger’s family members as sustained damage by reason of his or her death.
18 It is important to note that Pt IV of the Cth CACL Act only applies to a flight which falls within s 27(1). As noted, the flight the subject of these proceedings was entirely within New South Wales. Such a flight does not fall within s 27(1) of the Cth CACL Act as it is not under a contract for the carriage of a passenger within any of s 27(1)(a)-(d) either at all or as extended by s 27(3).
19 Turning now to the NSW CACL Act, the relevant provisions for the purpose of the jurisdictional issue are ss 4, 5 and 6A.
4 Carriage to which Act applies
The carriage to which this Act applies is the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in the State and another place in the State or from a place in the State back to that place, not being:
(a) carriage to which Part IV of the Commonwealth Act applies, or
(b) carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies, or
(c) carriage to which the provisions of another convention, protocol or treaty apply, being provisions that have the force of law under the Commonwealth Act and that are prescribed for the purposes of this paragraph by the regulations under this Act.
5 Application of provisions of Parts IV and IVA of the Commonwealth Act
The provisions of Parts IV and IVA of the Commonwealth Act (other than sections 27, 40, 41 and 41J (8)) and, subject to section 7 of this Act, the provisions of the Commonwealth Regulations apply to and in relation to carriage to which this Act applies and matters connected with the carriage, as if those provisions were incorporated in this Act and as if, in those provisions as so incorporated:
(a) general references to Parts IV and IVA of the Commonwealth Act were references to this Act,
(b) a reference in one of those provisions to another of those provisions were a reference to that other provision as applying by virtue of this Act,
(c) the reference in subsection (5) of section 29 of the Commonwealth Act to carriage referred to in subsection (4) of section 27 of that Act were a reference to the carriage of a passenger where:
(i) the carriage of the passenger between two places was to be performed by two or more carriers in successive stages,
(ii) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts, and
(iii) this Act would have applied to that carriage if it had been performed by a single carrier under a single contract, and
(d) the references in the Commonwealth Act to the regulations relating to certain matters were references to the provisions of the Commonwealth Regulations relating to those matters as applying by virtue of this Act.
6A Administration of the applied provisions as Commonwealth laws
(1) It is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State.
(2) To that end:
(a) Commonwealth authorities have the same powers to enforce the applied provisions as they have to enforce the Commonwealth Act and the Commonwealth Regulations, and
(b) the laws of the Commonwealth apply to offences against the applied provisions as if they were offences against the Commonwealth Act or the Commonwealth Regulations, and
(c) the laws of the State do not apply to offences against the applied provisions.
(3) In the application of provisions of the Commonwealth Act and the Commonwealth Regulations under this Act, any function or power conferred on a Commonwealth authority by or under those provisions may be exercised or performed (in respect of carriage to which this Act applies and matters connected with that carriage) by that Commonwealth authority.
20 The effect of s 6A of the NSW CACL Act was considered by the Court of Appeal of New South Wales in South West Helicopters Pty Ltd v Stephenson  NSWCA 312; 327 FLR 110 (which is the decision which was appealed to the High Court in South West Helicopters). Basten JA stated at  that s 6A(1) had two relevant consequences for the enforcement of the applied provisions in the Cth CACL Act. First, it picks up the purpose of the Commonwealth legislation in expanding to domestic air carriage the laws applied by the Conventions as in force from time to time. Secondly, his Honour said that “the effect may be to pick up and apply as State law relevant provisions of the Acts Interpretation Act 1901 (Cth)”. Furthermore, at  Basten JA described 6A(1) as comprising a direction:
… that the applied provisions are to be administered and enforced “as if they were provisions applied as laws of the Commonwealth instead of being provisions applying as laws of the State”. The effect of this section is to require that the applied provisions prevail over State laws with which they are inconsistent.
21 It is also apposite to note Leeming JA’s observations at - of Stephenson on the nature and effect of s 6A (bold emphasis added):
269. Section 6A(1) of the State Act provides, somewhat unusually, that “[i]t is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State”. To that end s 6A(2) purports to confer power upon Commonwealth authorities to enforce the applied provisions, and makes Commonwealth laws applicable to offences against those provisions and disapplies State laws to offences against those provisions. Similarly, there is a regime permitting Commonwealth authorities to investigate accidents (see for example s 69 of the Transport Safety Investigation Act 2003 (Cth)), in accordance with The Queen v Hughes (2000) 202 CLR 535;  HCA 22.
270. The principal reason for mentioning these aspects of the legislative regime is to observe that while the content of the legislation which is central to this appeal is federal law, it remains legislation which, in its application to the carriage of Mr Stephenson, has the force of State law. As will be seen below, one reason for my conclusion as to the limited operation of the “exclusivity principle” is that I fail to see how that principle, in its application as one of the applied provisions which have the force of State law, could exclude a claim under a federal law which applied of its own force. The fiction effected by s 6A that the applied provisions should be administered and enforced as if they were laws of the Commonwealth does not affect their constitutional status. For example, a claim under the applied provisions would not of itself give rise to a matter in federal jurisdiction: the plaintiff’s claim arises under the State law, not the law of the Commonwealth which is only made applicable by State law. However, I agree with Basten JA at  that it appears to have the consequence that the applied provisions are interpreted as if they were laws of the Commonwealth.
22 I respectfully agree with the observations concerning s 6A of both Basten JA and Leeming JA which are set out above. Although Leeming JA was in dissent in Stephenson and the High Court dismissed an appeal from that decision in South West Helicopters, nothing said by the High Court casts any doubt on the correctness of Leeming JA’s observations at  in Stephenson regarding the nature and effect of s 6A. Although there is no reference to s 6A in the plurality’s reasons in South West Helicopters, Gordon J described at  how s 6A of the NSW CACL Act operated so that the applied provisions “are administered and enforced as if they were provisions applying as laws of the Commonwealth instead of as laws of the State”. This is also evident from the text of s 6A itself.
Consideration and determination
23 The Federal Court was created by the Federal Court of Australia Act 1976 (Cth) (FCA Act). The Court’s original jurisdiction is described in s 19 as being “such original jurisdiction as is vested in it by laws made by the Parliament”, being jurisdiction in respect of matters arising under laws made by the Parliament. As Professor Lindell states in Federal Jurisdiction in Australia at p.158, despite its original conception as a specialist court with limited jurisdiction, the Federal Court has been transformed into a court of general federal civil law. This is the result of various legislative changes, the most significant of which occurred in 1997 when s 39B of the Judiciary Act 1903 (Cth) was amended by adding the following provision:
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament.
24 In 1999, s 39B(1A)(c) was qualified by adding “other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”.
25 The concept of “matters” is central to a proper understanding of federal jurisdiction. The terms “matter” or “matters” appear in ss 75 and 76 of the Constitution, which deal with the original jurisdiction of the High Court, as well as s 77 regarding the power to define jurisdiction. The term “matters” also appears in various relevant provisions of the Judiciary Act 1903 (Cth), including in ss 38 and 39. Section 39(2) invests State Courts with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to various exceptions and restrictions.
26 In a revised version of an informative paper delivered in September 2002 to the NSW Bar Association, Allsop J (as his Honour then was) described the word “matter” as “basal to an understanding in federal jurisdiction” (see Allsop J, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002”, (2002) 23 Australian Bar Review 29). He said at paragraph 32 (footnotes omitted):
The ‘matter’ is the justiciable controversy between the actors to it comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or amongst them. It is not the cause of action or the causes of action brought by the plaintiff. A justiciable controversy is identifiable independently of proceedings brought for its determination. It is not characterised by the form of the proceedings. It is the whole controversy in respect of which it is the function of the court (State or federal) exercising the judicial power of the Commonwealth to quell. It is the ‘subject matter for determination in a legal proceeding’. The best known limitation is that it does not include advisory opinions. This limitation arises from the Constitutional purpose of courts exercising of the judicial power of the Commonwealth in Ch III: to quell controversies, not to answer hypothetical questions or questions for advice put to them whether by private parties, the Parliament or the Executive. Accepting this limitation, it is essential to appreciate the width of the notion.
27 The Full Court had occasion to explain many of the elements of federal jurisdiction in Rana v Google Inc  FCAFC 156; 254 FCR 1. In that case, the applicant commenced proceedings in the Federal Court. Claims were made against Google for defamation, contravention of ss 18 and 21 of the Australian Consumer Law and negligence (an earlier claim against the Commonwealth for judicial review was resolved by consent). The primary judge struck out the Australian Consumer Law claims and then determined that, in circumstances where there was no longer a federal claim, the Court lacked jurisdiction to entertain the remaining claims in negligence or defamation. An appeal from this determination was allowed. It is desirable to set out in their entirety  to  of the Full Court’s reasons (per Allsop CJ, Besanko and White JJ) because, despite their length, they are important to the disposition of the present proceedings (emphasis in original):
15 The jurisdiction exercised by the Federal Court is always federal jurisdiction: Re Wakim; Ex parte McNally  HCA 27; 198 CLR 511. The content of that jurisdiction exercised by this Court is derived from ss 75 and 76 of the Constitution, and that jurisdiction is defined by laws that are authorised by s 77(i) of the Constitution. Section 19 of the Federal Court of Australia Act provides that the Federal Court “has such original jurisdiction as is vested in it by laws made by the Parliament”. Leaving to one side specific conferrals of jurisdiction on the Court by individual Acts of the Commonwealth Parliament, by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), Parliament has conferred upon the Court a general federal civil jurisdiction, being “jurisdiction in any matter … arising under any laws made by the Parliament …”.
16 Crucial to the scope and operation of federal jurisdiction, to the question whether a proceeding is within federal jurisdiction and to the question whether a proceeding is within the jurisdiction of this Court, is the concept of a “matter”. In Re Wakim, Gummow and Hayne JJ at 198 CLR 585-586 - described a “matter”, and the process of its identification, as follows:
 The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.
 In Fencott it was said that: “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single 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”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.
(citations omitted and emphasis added)
17 The “matter” is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. The non-federal part of the matter is sometimes referred to as “accrued jurisdiction” (as distinct from the associated jurisdiction provided for under s 32 of the Federal Court of Australia Act). It is better understood and expressed, however, as being part of the one matter. References to “accrued jurisdiction” need to be treated with caution or, indeed, to be avoided: see Rizeq v Western Australia  HCA 23; 91 ALJR 707 at  per Bell, Gageler, Keane, Nettle and Gordon JJ. (It should also be noted at this point that no issue concerning s 79 of the Judiciary Act arises in this case.)
18 A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation – that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett  HCA 50; 70 CLR 141 at 154; Felton v Mulligan  HCA 39; 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Co Ltd v Philip Morris Ltd  HCA 32; 145 CLR 457 at 476; LNC Industries Ltd v BMW (Aust) Ltd  HCA 31; 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland  HCA 40; 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley  HCA 2; 327 ALR 564; Australian Solar Mesh Sales Pty Ltd v Anderson  FCA 864; 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd  FCA 1584; 96 FCR 1 at 13-16 -. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton 124 CLR at 374, 408-409, 416.
19 The Court (French CJ, Kiefel, Bell and Keane JJ) said the following in CGU 327 ALR at 573 - in discussing federal jurisdiction:
 The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller 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”. It has an evaluative element as also appears from the majority judgment in Fencott:
What 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. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.
The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:
a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
 The existence of jurisdiction is anterior to the existence of the power to grant particular relief. As Gleeson CJ and McHugh J said in MIMIA v B:
In a legal context the primary meaning of jurisdiction is ‘authority to decide’. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction.
The distinction has been made frequently in this court.
20 Once a matter is within federal jurisdiction, the entire matter is within federal jurisdiction: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd  HCA 1; 204 CLR 559 at 571  per Gleeson CJ, Gaudron and Gummow JJ. There is never any concurrent exercise of federal and State jurisdiction: Felton 124 CLR 367 at 412-413; Moorgate 145 CLR at 471.
21 Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation  FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte  HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin  FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd  FCA 1572; 104 FCR 564 at 597  per French J. The same is true if the federal claim is effectively abandoned: see Moorgate 145 CLR 457. Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it is all part of the same matter, the same controversy: Re Wakim 198 CLR at 587  per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski  FCA 1528; 226 ALR 773 at 784  as follows:
It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction …
22 The exception to this principle is where the federal claim that is made is “colourable” in the sense that it was “made for the improper purpose of fabricating jurisdiction” such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale 18 FCR at 219.
28 Further helpful guidance on what constitutes a “colourable” federal claim can be obtained from the following observations of Perry J in Qantas Airways Ltd v Lustig  FCA 253; 228 FCR 148 at :
The raising of a federal claim will ordinarily give rise to a federal matter unless it is colourable in the sense that it is made for “the improper purpose of “fabricating” jurisdiction”: Burgundy Royale at 219 (the Court). The question, therefore, of whether a claim is tenable will be relevant to that question but not determinative save (rarely) where a claim is so obviously untenable, and would have been so to those who propounded it, that the claim is found to be colourable: Cook v Pasminco  FCA 677; (2000) 99 FCR 548 at 550  and  (Lindgren J); Ahmed v Harbour Radio Pty Ltd  FCA 1113; (2009) 180 FCR 313 at 327-329 – (Foster J). For example, in Johnson Tiles Pty Ltd v Esso Australia  FCA 1572; (2000) 104 FCR 564 (Johnson Tiles), French J (with whose reasons Beaumont and Finkelstein JJ agreed) explained at 598-599  that:
In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation – Nikolic v MGICA Ltd  FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called “colourable” claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense.
29 In Federal Jurisdiction in Australia at p.186, Professor Lindell describes Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd  HCA 38; 161 CLR 543 as standing for the proposition that, for accrued jurisdiction to arise, “the original jurisdiction must have existed and been properly invoked”. The High Court said at 551:
A matter does not arise under a law of the Parliament merely because the interpretation of the law is involved, but a matter does arise under a law of the Parliament if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is such a law [citing Felton v Mulligan  HCA 39; 124 CLR 367 at 408 and LNC Industries Ltd v BMW (Australia) Ltd  HCA 31; 151 CLR 575 at 581].
30 In Castlemaine, the High Court added at 553 that “[i]t clearly appears from [Stack v Coast Securities (No 9) Pty Ltd  HCA 36; 154 CLR 261], and is indeed obvious, that there can be no accrued jurisdiction unless there are federal issues which the Court has jurisdiction to entertain”.
31 For the following reasons, I reject the applicant’s contention that this Court has jurisdiction to entertain the proceedings. First, it is made explicit in  of the amended statement of claim that the action for damages is brought by the applicant against the respondent “pursuant to S.28, 31 and 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), as incorporated by S.5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW)”. It is further pleaded in , that the respondent is “strictly liable under the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and Civil Aviation (Carriers’ Liability) Act 1967 (NSW) to pay damages to the Applicant for the loss and injuries sustained as a result of the death of the deceased”. Further, as noted, the relief sought by the applicant as stated in the amended statement of claim includes a claim for damages “pursuant to section 31 of the Civil Aviation (Carrier’s [sic] Liability) Act 1959 (Cth)”.
32 The fundamental flaw in the applicant’s position is that any purported federal claim raised in the amended statement of claim is entirely misconceived for the simple reason that the rights and liabilities created by that legislation do not apply to an intra-state flight. The position is unchanged simply because it appears that the applicant also brings a claim under the NSW CACL Act. That is because, as Leeming JA pointed out in Stephenson, a claim under the applied provisions does not of itself create a matter in federal jurisdiction. Rather, such a claim arises under State law and not Commonwealth law, which is only made applicable by s 6A. It goes without saying that, following Re Wakim; Ex parte McNally  HCA 27; 198 CLR 511, the State could not vest State jurisdiction in a federal court.
33 Thus the fundamental problem confronting the applicant is that the Court does not have direct jurisdiction in respect of a claim for damages relating to an intra-state flight. The position is similar to that which arose in Rivera v Australian Broadcasting Corporation  FCA 661; 144 FCR 334. There the applicant brought proceedings in this Court in which claims were made under s 52 of the then Trade Practices Act 1974 (Cth) and under the Privacy Act 1988 (Cth), as well as raising allegations of defamation and breach of confidence. Justice Hill upheld the respondent’s contention that the claims against it for breaches of either the Trade Practices Act or the Privacy Act were explicitly excluded by relevant provisions of both those Acts, with the consequence that the Court had no jurisdiction conferred upon it to determine those federal matters. Furthermore, because the Court had no jurisdiction to determine those matters, the want of jurisdiction could not be cured by resorting to the concept of “accrued jurisdiction” in respect of the claims and defamation and for breach of confidence.
34 Having regard to the terms of s 27 of the Cth CACL Act, the liability imposed by s 28 does not apply directly to an intra-state flight by force and operation of that Commonwealth legislation. Rather, liability in respect of an intra-state flight arises as result of s 5 of the NSW CACL Act, by reference to the terms of s 4 of that State legislation. The applicant emphasised that the accident which caused the death of the passenger in South West Helicopters occurred during a wholly intra-state flight, as is the case here. That is true but the applicant overlooks the important fact that the proceeding there was commenced in the Supreme Court of New South Wales. No issue of the jurisdiction of the Federal Court arose in South West Helicopters.
35 It is not simply a case of the applicant’s claim not being tenable. Rather, the claim is based upon a submission which is outside jurisdiction. Thus it falls within the class of claims described by French J in Johnson Tiles Pty Ltd v Esso Australia  FCA 1572; 104 FCR 564 at  (which is set out at  above) where the claim by its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction (Beaumont and Finkelstein JJ agreed with French J). That is the case here because the Court has no jurisdiction in respect of a claim for damages based upon s 28 of the Cth CACL Act which relates to an intra-state flight.
36 Secondly, and related to the first point, I do not accept the applicant’s contention that the respondent’s alleged liability in these proceedings is imposed by s 28 of the Cth CACL Act so as to give rise to federal jurisdiction. The applicant contended that this contention was supported by what the plurality said in Agtrack (NT) Pty Ltd v Hatfield  HCA 38; 223 CLR 251 at  per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ. The plurality said there:
These provisions of the Carriers' Act are an example of a federal law which creates new rights and duties. A controversy respecting the existence and enforcement of these rights and duties "accordingly supplies an appropriate subject or 'matter' upon which 'judicial power' or 'jurisdiction' may operate, whether the jurisdiction is given in the same breath or quite independently". The words are those of Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett.
37 The applicant contended that this passage supported its contention that the relevant provisions in Pt IV of the Cth CACL Act “are an example of a federal law which creates new rights and duties”. That is true, but it is critical to note that there was no issue of the jurisdiction of the Federal Court in Agtrack. The Supreme Court of Victoria was plainly exercising federal jurisdiction in circumstances where the passenger in that proceeding died when a charter flight crashed in the Northern Territory. The claim for liability in Agtrack related squarely to the Cth CACL Act and it is in that context that the plurality said at  that that legislation is an example of “a federal law which creates new rights and duties”. Those statements were directed to the facts and circumstances of that particular case which, in contrast to the present proceedings, did not involve an intra-state flight.
38 Thirdly, it is notable that at no point has the applicant expressly sought to rely upon the concept of “accrued jurisdiction”, notwithstanding that (as mentioned) there are references in the amended statement of claim to some relevant provisions of the NSW CACL Act. For completeness, however, I can indicate that if “accrued jurisdiction” is relied upon by the applicant I would reject it on either of two bases. The first is that which emerges from Rivera, namely that if there is no jurisdiction in respect of a federal claim, the concept of accrued jurisdiction simply does not arise.
39 The second basis for rejecting any suggestion that the Court has accrued jurisdiction is that, having regard to the plain terms of s 27 of the Cth CACL Act, the applicant’s claim that liability arises directly under s 28 of that legislation, rather than through the NSW CACL Act, is properly regarded as a colourable attempt to fabricate federal jurisdiction, applying the principles discussed above in respect of that concept.
40 For these reasons, the amended originating application must be dismissed for want of jurisdiction, with costs.