Federal Court of Australia

Malecki v Macko [2022] FCA 766

ORDERS

THE COURT ORDERS THAT:

1.    The Court has jurisdiction to hear and determine this proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is a decision on the Court’s jurisdiction to hear and determine a proceeding before the Court. The applicants bring a claim for damages against the respondents for the publication of defamatory matter.

The Parties to the Proceeding and the Procedural History

2    The first applicant in the proceeding is Mr Andrew Malecki and he is the sole director of the second applicant, Better Lending Pty Ltd. The first applicant appears in person and has been given leave from time to time to appear on behalf of the second applicant. The first respondent is Mr Christopher Edward Macko and he is a director of the second respondent, Macko Corporation Pty Ltd, which is sued in its own right and as trustee for the Macko Corporation Trust. The respondents are represented by solicitors.

3    The Statement of Claim dated 21 July 2021 (the SOC) was prepared by the first applicant. The applicants allege that the respondents made a number of publications carrying defamatory imputations by email and text message and orally, both to business associates of the parties and to the Australian Financial Complaints Authority (the AFCA). In relation to the latter, the relevant publication is a publication alleged to have been made by the respondents to the AFCA by email dated 28 June 2020. The imputations alleged to have been conveyed by the publications include the following: the applicants have misappropriated trust monies; the first applicant has behaved dishonestly; the applicants have engaged in misleading and deceptive conduct; and the first applicant has engaged in criminal and/or fraudulent activity. The applicants seek damages against the respondents, including aggravated damages by reason of, among other things (so it is alleged), the first respondent’s knowledge of the falsity of the imputations, the continued and ongoing publication of the false imputations and the malicious and wilful intent of the publications.

4    At the first case management hearing, the first applicant appeared in person and I gave him leave to appear on behalf of the second applicant. On that occasion, I raised with the parties the question of the jurisdiction of the Court to hear and determine the applicants’ claim. Counsel for the respondents indicated that the respondents did not take any point with respect to jurisdiction and, in that context, he referred to the fact that one of the alleged publications is a publication to a federal body, namely, the AFCA. Counsel for the respondents referred the applicants to Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (Rana v Google) and Colagrande v Telstra Corporation Limited [2020] FCA 1595 and I referred the parties to Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 (Crosby v Kelly) and Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 (Oliver). I made orders that each party file and serve written submissions on the question of jurisdiction.

5    The applicants did not file written submissions within the time permitted by the orders made at the first case management hearing and the respondents indicated that they did not consent to any extension of time for the filing of the applicants’ written submissions.

6    The applicants issued an Interlocutory application dated 19 September 2021 supported by an affidavit of the first applicant sworn that day, in which he deposes to the reasons for the applicants’ non-compliance with the orders made at the first case management hearing. The written submissions upon which the applicants sought to rely are exhibited to the affidavit. The application was listed for argument and I made an order that the applicants file any further evidence they sought to rely on in relation to their Interlocutory application. That was not done within the time permitted and the applicants issued a second Interlocutory application, dated 27 September 2021, seeking an order that an affidavit and annexures attached, be received by the Court. This Interlocutory application is accompanied by an affidavit of the first applicant sworn on 27 September 2021, in which, among other things, he deposes to the reasons for the applicants’ non-compliance with the order made at the mention.

7    After hearing submissions on the matter, I made an order that the time specified for the filing of the applicants’ written submissions be extended up to and including 20 September 2021, being the date of the first affidavit of the first applicant, exhibiting the applicants’ written submissions. I did that because the circumstances justified such an order in that I was required to consider the issue of jurisdiction regardless of the parties’ position and so the matter was in a different category to the usual inter partes application. I reserved judgment on the question of jurisdiction.

The Court’s Jurisdiction

8    Section 39B of the Judiciary Act 1903 (Cth) confers original jurisdiction on the Court and is in the following terms, relevantly:

39B Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(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, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. …

9    The principles as to what is a “matter”, when a matter is a matter “arising under” a law of the Parliament and the fact that once a matter is within federal jurisdiction, the entire matter is within federal jurisdiction, are well known. For present purposes, it is sufficient to set out three paragraphs from Rana v Google (at [17]–[18] and [20]):

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 (2017) 91 ALJR 707; 344 ALR 421 at [55] 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 (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 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 (1999) 96 FCR 1 at [45]-[55]. 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 at 374, 408-409, 416.

…

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 (2001) 204 CLR 559 at [7] per Gleeson CJ, Gaudron and Gummow JJ. There is never any concurrent exercise of federal and State jurisdiction: Felton at 412-413; Moorgate at 471.

(See also Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 400 ALR 1 (Citta Hobart) at [31] and [33] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.)

10    A non-colourable assertion of a federal issue is generally enough to attract federal jurisdiction.

11    Colourability was most recently considered by the High Court in Citta Hobart. The passages are lengthy, but, with respect, they provide a comprehensive statement of the position. The plurality said (at [35]–[38], [40]–[43] and [45]):

35    The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.

36    That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is “unarguable” or if the claim or defence is “colourable” in that it is made for the purpose of “fabricating” jurisdiction.

37    Thus, the State jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution is not denied, just as the federal jurisdiction of this Court under s 76(i) or s 76 (ii) or of another court under s 77(i) or s 77(iii) of the Constitution is not engaged, by the assertion of a claim or defence that amounts to “constitutional nonsense” or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.

38    The Full Court of the Federal Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation captured that principle well in pointing out that jurisdiction with respect to a matter is jurisdiction “to entertain, and determine, all claims constituting [the matter], whatever their ultimate fate”. It went on to point out that “[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim”.

…

40    Entirely consistent with the approach taken in this Court are decisions of the Full Court of the Federal Court in cases in which a claim or defence based on a Commonwealth law has been struck out or summarily dismissed – by reason of the claim or defence having been found on analysis and after argument to be “foredoomed to fail” or “so clearly untenable that it cannot possibly succeed” – and in which the Federal Court has yet been held to retain jurisdiction simply by reason of the claim or defence having been genuinely asserted.

41    The respondent, with the support of the Attorney-General of the Commonwealth and some other intervenors, invites this Court to depart from that principled and longstanding approach. The invitation is to put in its place a requirement that, to operate to characterise a justiciable controversy as a matter described in s 76(i) or s 76(ii) of the Constitution, a claim or defence asserted in reliance on a Commonwealth law or in reliance on the Constitution must meet a threshold of arguability consistent with the raising of the claim or defence in a court not amounting to an abuse of the process of that court. The invitation is rejected.

42    To adopt the suggested approach would blur the distinction between the existence of jurisdiction and the exercise of jurisdiction. It would confuse the jurisdiction that any court or non-court tribunal must have to decide the limits of its own jurisdiction with the power that a court alone must have in the exercise of its jurisdiction to safeguard the integrity of its processes. Applied to this Court, to a court created by the Commonwealth Parliament or a court of a State on which federal jurisdiction is conferred by a Commonwealth law, such an approach would result in a perverse fragmentation of jurisdiction by splintering off from jurisdiction those aspects of a genuine controversy most readily resolvable in the exercise of judicial power. Applied by a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii), it would inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution.

43    None of that is to suggest that an incomprehensible or nonsensical claim or defence that is thereby incapable of giving rise to a matter within a description in s 76(i) or s 76(ii) of the Constitution would not equally be a claim or defence that would be struck out or summarily dismissed by a court were it asserted in a proceeding in respect of which federal jurisdiction was otherwise attracted under s 75 or s 76 of the Constitution. But the questions which arise and the tests which are applied on applications of the kind mentioned are different from those which arise and are applied when determining the existence of jurisdiction.

…

45    Here, as has already been noted, the Tribunal specifically found that the constitutional defence of the appellants was “not colourable”. That finding has not been challenged. Whatever the merits of the constitutional defence, there is and could be no suggestion that the constitutional defence was not genuinely raised or is so incoherent as to be insusceptible of judicial determination on those merits.

(Citations omitted; see also Rana v Google at [21]–[22]; Tucker v McKee [2022] FCAFC 98 at [67]–[70].)

The Parties’ Contentions

12    The SOC addresses the issue of jurisdiction and the following assertions are taken from that document.

13    Pursuant to s 39B(1A)(c) of the Judiciary Act, the Court is a Court of general federal jurisdiction and has jurisdiction whenever a law of the Commonwealth Parliament is part of a dispute. A federal matter arises if a right, duty or obligation in issue owes its existence to federal law or depends upon federal law for its enforcement. This includes a claim in respect of a right that is the creation of federal law.

14    The alleged publications damage the applicants with respect to the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth) (the AFCA Act). Furthermore, the second applicant owes its existence and powers to the Corporations Act 2001 (Cth). The second applicant is subject to the provisions of the AFCA Act in its capacity as an Australian Credit Licensee company and the first applicant and/or the second applicant are/is also subject to the provisions of the National Consumer Credit Protection Act 2009 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth).

15    The applicants develop these points in their written submissions and also introduce a submission raising the possibility that publication has occurred in the Australian Capital Territory, namely, the publication alleged to have been made by the respondents to the AFCA. The significance of that matter is that the Court has jurisdiction in matters in which it is asserted that a publication has been made in the Australian Capital Territory. I will return to this point.

16    The applicants ultimately submit that:

Given, as mentioned above, that AFCA operates on the national platform pursuant to Commonwealth legislation it is reasonable to assert that the publication was read in the ACT.

17    For their part, in their written submissions the respondents refer to the following passage from the reasons of Lee J in Oliver (at [16]):

Fourthly, and more broadly, as Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581, a federal matter arises if a right, duty or obligation in issue in the matter “owes its existence to federal law or depends upon federal law for its enforcement” including where the right claimed is in respect of a right or property that is the creation of federal law. Whether or not a matter arises does not depend upon the form of the relief sought: LNC Industries at 581. This would involve when a right or duty based on a Commonwealth statute in issue arises (even where it has not been pleaded by the parties, or a federal issue is unnecessary to decide). A common example illustrates the potential breadth of this concept. It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the JA. Chapter 2B of the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay’s Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2A.2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth.

18    The respondents then put their position as follows:

6.    The Respondents point to the following as relevant to jurisdiction:

a.    one applicant and one respondent are corporations;

b.    the recipient of the one of the publications complained of (being Annexure 2 to the Statement of Claim) was the Australian Financial Complaints Authority (AFCA); and

c.    AFCA has a presence in all States and Territories as a federal agency (albeit not one that is created by statute).

7.    However the respondents do not know whether the AFCA publication, being a complaint to it by email, was opened or read in the ACT.

(Footnote omitted.)

Analysis

19    In my opinion, there are two possible sources of jurisdiction in this proceeding: (1) the possible publication in the Australian Capital Territory; and (2) the fact that the second applicant and the second respondent are corporations.

20    Before considering these matters, I should record the fact that I do not consider this to be a case in which it is appropriate or necessary to defer consideration of the question of jurisdiction to a point after the close of pleadings, as was done in Crosby v Kelly. In that case, there was a question as to whether the defence would include reliance on the implied freedom of political communication and whether the defence would rely on the respondent’s position as a member of the House of Representatives and the privileges and immunities of a member of the House of Representatives (at [10]–[12]).

21    I turn now to address the two possible sources of jurisdiction in this proceeding.

Publication in the Australian Capital Territory?

22    The decision in Crosby v Kelly establishes that an assertion of publication of defamatory matter in the Australian Capital Territory attracts federal jurisdiction. The effect of the analysis in that case is that such an assertion gives rise to a federal issue, in that there is at once an assertion that: (1) the applicant has suffered harm in the Australian Capital Territory pursuant to Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) and/or the common law of defamation; (2) that being so, there is an “ACT matter” within the meaning of the Dictionary to the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) (the ACT Act) in respect of which this Court has jurisdiction (s 4(1) of the ACT Act; see also s 20(1) of the Supreme Court Act 1933 (ACT)); and (3) s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) is engaged and, therefore, a matter arises under a law of the Parliament defining the jurisdiction of a federal Court other than the High Court under s 77(i) of the Constitution (Crosby v Kelly at [18]–[28], [39] and [44] per Robertson J (with whom Bennett and Perram JJ agreed)).

23    At the outset, it is important to frame the question of publication in the Australian Capital Territory in the context of the issue of jurisdiction with which I am concerned. That is to say, the question is not whether publication has in fact occurred in the Australian Capital Territory. In this respect, the following observations of Lee J in Oliver are apposite (at [17]):

This and other recondite ways that jurisdiction is attracted can be put to one side for present purposes, however, because the invocation of federal jurisdiction in the present case is quite straightforward. Even if I were to find, contrary to Mr Oliver’s assertion in the initial statement of claim, that upon consideration of the evidence there was no proof of publication outside New South Wales, that does not mean the matter has not always been within federal jurisdiction since the assertion was made: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. As the now Chief Justice noted in (2002) 23 Aust Bar Rev 29 at 45:

Once a non-colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC’s testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms:

So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction.

‘Colourable’ imports improper purpose, or a lack of bona fides. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process.

(See also Rana v Google at [21]–[22].)

In other words, what may seem to be an assertion of fact amounts, on the analysis in Crosby v Kelly, to an assertion of a federal issue so as to clothe the Court with jurisdiction.

24    Justice Lee in Oliver had earlier noted (at [6]) that in that case, there had been an allegation in the applicant’s amended statement of claim that the broadcast of the matter complained of extended to other places within the Commonwealth, including the Australian Capital Territory and the Northern Territory. His Honour noted that at the commencement of the hearing, it became evident, for the first time, that the contention of the respondents was that the matter complained of was broadcast solely within New South Wales. His Honour concluded (at [18]):

There is no suggestion here that that the relevant assertion as to publication in the Territories made in the initial statement of claim was colourable. Federal jurisdiction was thereby attracted and once federal, the matter is always federal: Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at 13-16 [45]-[55]. If an allegation of publication in the Territories is made bona fide, the Court is properly seized with jurisdiction to deal with the controversy and always will be even if the non-colourable allegation was unnecessary to decide, abandoned, struck out, or otherwise rejected on the evidence adduced at trial. As it turns out in this case, no evidence was adduced by Mr Oliver to prove publication in the Territories being a material fact pleaded and upon which issue was joined. As a consequence, the allegation fails for want of proof, but this does not mean that federal jurisdiction, properly invoked upon the bona fide making of the allegation, somehow disappeared like a will-o’-the-wisp.

25    The question, then, is whether there has been a non-colourable assertion in this proceeding that publication was made in the Australian Capital Territory.

26    There is no such allegation in the SOC, although the applicants in their written submissions do assert that the publication alleged to have been made to the AFCA was read in the Australian Capital Territory. The respondents in their written submissions indicate out that they do not know whether the AFCA publication was read in the Australian Capital Territory. In my view, there may well be a distinction to be drawn between an assertion going to jurisdiction made in a pleading and an assertion made in a submission itself concerning the issue of jurisdiction and which the Court has received in order to determine that issue. It may be seen, however, that the notion of an “assertion” appears to import more than one made in a pleading. The testimony given by Owen Dixon KC (as his Honour then was) to the Royal Commission on the Constitution (see above at [23]), includes one such example. Another is given by the now Chief Justice, writing extra-curially in 2002, and it is issues that are ventilated by the parties in their discussion of the controversy (Allsop J, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Rev 29–60 at 45, citing Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at [41]–[55]).

27    In my opinion, the assertion made by the applicants in their written submissions is sufficient to attract jurisdiction. As the respondents acknowledged in their written submissions, it is far from certain whether any publication has in fact been made in the Australian Capital Territory. But that is not to the point because once an assertion is made, the matter is one of federal jurisdiction. The assertion in this case is non-colourable in that one publication alleged in the SOC to have been made, is the publication to the AFCA. It is perhaps the most significant publication to the applicants’ claim on the face of the pleading, in terms of the number of assertions relied on by the applicants and a copy of the alleged publication is annexed to the SOC. There is no evidence or suggestion that the applicants make that claim in bad faith and for the bare purpose of asserting jurisdiction in their written submissions. The claim is not colourable in the sense of a claim made for an improper purpose of “fabricating” jurisdiction (Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Citta Hobart at [36] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

28    That conclusion is decisive of the question of jurisdiction in this case. I will briefly explain the reasons why I will not express a concluded view with respect to the second possible source of jurisdiction.

The Second Applicant and the Second Respondent are Corporations

29    It will be recalled that the respondents in their written submissions referred to the observations, relevant to this issue, of Lee J in Oliver (at [16]), which are set out above (at [17]).

30    His Honour held that jurisdiction was attracted, applying the decision in Crosby v Kelly and, in relation to his Honour’s observations about jurisdiction based on corporate status, he went no further than saying that the point was arguable (see also Hafertepen v Network Ten Pty Limited [2020] FCA 1456 at [44] per Katzmann J).

31    Justice of Appeal Leeming, writing extra-curially, expresses the view that there will be a matter arising under a law of the Parliament where the “status” of a party turns on federal law and that, for example, claims by administrators under a deed of company arrangement depend on the status afforded to them by the Corporations Act, and so are within federal jurisdiction (Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020) at 205, citing Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd [2009] FCA 742; (2009) 258 ALR 89 (Vopak Terminal Darwin) at [48] per Lindgren J). His Honour does not comment on whether the further step can or should be taken of holding that in the case of a corporation, because its status depends on a law of the Parliament, federal jurisdiction is attracted in any matter to which a corporation is party.

32    In my opinion, the starting point is the concept of a matter “arising under” a law of the Parliament in s 39B(1A)(c) of the Judiciary Act and the proposition that that expression encompasses matters in which the right or duty in question owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154 per Latham CJ). The argument which results in jurisdiction is that corporations owe their capacity to sue or to be sued to ss 119 and 124(1) of the Corporations Act and any right to be enforced by a corporation or duty to be enforced against it owes its existence to federal law. An alternative formulation of the argument might be to characterise the capacity to sue or to be sued itself as a right or duty owing its existence to federal law.

33    On the other hand, there are substantial arguments against jurisdiction. There would appear to be a distinction between a “matter” — in the sense of 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 (see above at [9]) — arising under federal law, and a party’s ability or capacity to agitate a matter or liability in relation to a matter arising under federal law. It is the matter which must itself arise under federal law in order for jurisdiction to be engaged, in that the jurisdictional basis must be endogenous to the justiciable controversy between the parties. If this is a valid and relevant distinction, it means that the Court will not have jurisdiction in a matter itself bearing no real connection to federal law merely by reason of the link, exogenous to the justiciable controversy, between a party or parties to the matter, and the Corporations Act.

34    The argument against jurisdiction does not affect federal jurisdiction with respect to administrators’ proceedings under the Corporations Act, to which one might add liquidators’ proceedings. It may be seen that matters involving administrators’ or liquidators’ claims will arise under the Corporations Act, in the sense that that Act makes provision for such proceedings (see Corporations Act, Chapter 5 Parts 5.3A, 5.4B, 5.5), such that the jurisdictional basis is endogenous to the justiciable controversy. In Vopak Terminal Darwin, Lindgren J said (at [48]):

The second basis of the Court’s jurisdiction is this: such claims as the Administrators assert on behalf of NFD depend upon their status as DOCA administrators under Pt 5.3A of the Act, and those claims, either alone or together with Vopak’s own claim, constitute a “matter” arising under a law of the Commonwealth Parliament: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [135]–[147]; Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at [10].

35    The issue is an important one of some complexity. I have not had the benefit of detailed submissions in this case and jurisdiction is otherwise established. In the circumstances, I do not propose to decide it.

Conclusion

36    The Court has jurisdiction to hear and determine this proceeding.

Associate:    

Dated:    5 July 2022