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Federal Court of Australia - Full Court Decisions |
Last Updated: 13 May 2003
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 83
PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L. AND OCEANIC EXPLORATION COMPANY v COMMONWEALTH OF AUSTRALIA, JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA, CONOCOPHILLIPS (91 - 12) PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM (91-12) PTY LIMITED), CONOCOPHILLIPS JPDA PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM COMPANY ZOC PTY LIMITED) AND PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED
NO. N 1224 OF 2001
BLACK CJ, BEAUMONT AND HILL JJ
6 MAY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 1224 OF 2001 |
BETWEEN: |
PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L. FIRST APPLICANT OCEANIC EXPLORATION COMPANY SECOND APPLICANT |
AND: |
COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA SECOND RESPONDENT CONOCOPHILLIPS (91 - 12) PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM (91-12) PTY LIMITED) THIRD RESPONDENT CONOCOPHILLIPS JPDA PTY LTD (FORMERLY KNOWN AS PHILLIPS PETROLEUM COMPANY ZOC PTY LTD) FOURTH RESPONDENT PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED FIFTH RESPONDENT |
JUDGES: |
BLACK CJ, BEAUMONT AND HILL JJ |
DATE: |
6 MAY 2003 |
PLACE: |
SYDNEY |
1 In par 4 of the reasons for judgment handed down on 6 May 2003 the citation for the Carlton & United Case should read Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38; (1986) 161 CLR 543.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum herein of the Court. |
Associate:
Dated: 13 May 2003
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 83
PRACTICE & PROCEDURE - accrued and associated jurisdiction of the Federal Court of Australia - primary claim dismissed as being non-justiciable whether accrued jurisdiction for remaining non-federal claim - where no jurisdiction invoked in primary claim no accrued or associated jurisdiction exists - where no common factual basis of claims no accrued or associated jurisdiction exists.
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth) s 39B
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 distinguished
Buck v Comcare (1996) 137 ALR 335 considered
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38; (1986) 161 CLR 543 followed
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 considered
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 followed
New South Wales Aboriginal Land Council v Aboriginal & Torres Strait Islander Commission (1995) 131 ALR 559 considered
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 considered
Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 considered
Vietnam Veterans' Affairs Association of Australia New South Wales Branch v Cohen [1996] FCA 981; (1996) 70 FCR 419 considered
Westpac Banking Corp v Paterson [1999] FCA 1609; (1999) 167 ALR 377 distinguished
Allsop J "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Australian Bar Review 29
Professor Zines "Federal, Associated and Accrued Jurisdiction" in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System, Melbourne University Press, 2000, p 295.
PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L. AND OCEANIC EXPLORATION COMPANY v COMMONWEALTH OF AUSTRALIA, JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA, CONOCOPHILLIPS (91 - 12) PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM (91-12) PTY LIMITED), CONOCOPHILLIPS JPDA PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM COMPANY ZOC PTY LIMITED) AND PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED
NO. N 1224 OF 2001
BLACK CJ, BEAUMONT AND HILL JJ
6 MAY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
1. The claim made in the amended application relating to confidential information be dismissed.
2. The applicants pay the costs of the respondents of the confidential information claim.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 1224 OF 2001 |
BETWEEN: |
PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L. FIRST APPLICANT OCEANIC EXPLORATION COMPANY SECOND APPLICANT |
AND: |
COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA SECOND RESPONDENT CONOCOPHILLIPS (91 - 12) PTY LIMITED (FORMERLY KNOWN AS PHILLIPS PETROLEUM (91-12) PTY LIMITED) THIRD RESPONDENT CONOCOPHILLIPS JPDA PTY LTD (FORMERLY KNOWN AS PHILLIPS PETROLEUM COMPANY ZOC PTY LTD) FOURTH RESPONDENT PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED FIFTH RESPONDENT |
JUDGES: |
BLACK CJ, BEAUMONT AND HILL JJ |
DATE: |
6 MAY 2003 |
PLACE: |
SYDNEY |
(ON THE CLAIMS RELATING TO CONFIDENTIAL INFORMATION)
BLACK CJ AND HILL J
2 In our reasons for judgment on the application to stay the orders this Full Court made on 3 February 2003 (Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82), we outlined the circumstances under which it has now become necessary to decide whether, all the other claims having been dismissed, the Court has jurisdiction to determine the claim relating to confidential information.
3 In our joint judgment on the separate question referred to the Full Court, we concluded that, having regard to the decision of the High Court in Potter v Broken Hill Proprietary Co Ltd [1906] HCA 88; (1906) 3 CLR 479, this Court had no jurisdiction to determine the validity of the grant of the concessions to the applicants by the Portuguese government. To the extent that what may be called the rule in Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 was not a manifestation of the same principle, that case provided an alternative basis for the decision. We concluded that non justiciability on either ground had the consequence that the Court lacked jurisdiction because there was no "matter" (in the sense that word is used in Chapter III of the Constitution) before the Court.
4 It cannot be in dispute that where this Court is invested with original jurisdiction to determine what may be referred to as a "federal matter" it has jurisdiction to determine the whole of the matter in controversy between the parties, including such elements of the matter as may be in and by themselves not federal in nature: Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 ("Phillip Morris"); Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570. In such a case the non federal matter has usually been said to be in the "accrued jurisdiction" of the Court, although the expression may need to be used with some care: cf Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 ("Edensor") at 585-6.
5 It is equally clear, however, that this Court may not proceed to deal with what may for present purposes be called the non federal aspect of the dispute unless the jurisdiction of the Court to deal with a federal matter has been invoked: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1999] FCA 255; (1986) 161 ALR 543 at 553 and see Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261.
6 As counsel for the 3rd to 5th Respondents point out in their written submissions, and by reference to what was said by Gleeson CJ, Gaudron and Gummow JJ in Edensor at 585-6, generally the cases which have considered the question of accrued jurisdiction have been cases which arose under a law made by the Parliament where the Court was seised of jurisdiction in a "matter" within the meaning of s 76(ii) of the Constitution. That law has usually been the Trade Practices Act 1974 (Cth). However, as already noted, it is important that the Court be seised of the federal matter before the question can arise whether the Court has accrued jurisdiction to determine the non federal issue which is part of the single controversy which constitutes the "matter".
7 It is now well established that the mere fact that a federal claim which is brought within the jurisdiction of the Court is not tenable will not prevent the Court from proceeding with a non federal element which is within the accrued jurisdiction of the Court: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 ("Burgundy Royale"); Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563.
8 Burgundy Royale involved a claim brought under the Trade Practices Act 1974 (Cth) against the Northern Territory and a corporation which was the Crown in the right of the Territory. It also involved non federal claims. The ratio of the decision is that it followed from Fencott v Muller that a "matter" in the context of s 76(ii) of the Constitution was a justiciable controversy which was either constituted by or included a claim arising under a federal law but might also include another cause of action arising under a non federal law. Since the Court had jurisdiction to determine each of the claims which together constituted a federal matter the mere fact that the federal claim was unsuccessful did not mean that the Court could not determine the non federal claim. Since the Court did have jurisdiction to determine the federal matter arising before it that jurisdiction did not cease once the federal claim was determined adversely to the applicants.
9 It is necessary now to consider the claims brought by the applicants which might be said to be federal claims to see whether the present case differs from that in Burgundy Royale. The judgment of Beaumont J in relation to the separate question referred to the Full Court, contains a full description of the claims. In brief it may be said that subject to the issue whether or not the claims were justiciable, they were federal claims within the jurisdiction conferred upon the Court by s 39B(1A)(b) of the Judiciary Act 1903 (Cth). That is to say that on the pleadings at least there were claims arising under the Constitution, or involving its interpretation. Alternatively the Court's jurisdiction was attracted by s 39B(1A)(c) because the claims could be said to arise under a law made by the Commonwealth Parliament.
10 However, s 39B(1A) confers jurisdiction upon the Court only in any "matter" arising under either the Constitution or a law of the Commonwealth as the case may be. The joint judgment holds that the issue in question was not justiciable. Can it thus be said that there has ever been a matter arising under either the Constitution or a law of the Commonwealth? If the answer is "No" then there never was jurisdiction conferred upon the Court by s 39B(1A) of the Judiciary Act 1903 (Cth).
11 This provides the point of distinction from Burgundy Royale.
12 In that case there was no doubt that there was jurisdiction conferred upon the Court to hear and determine the action brought under the Trade Practices Act 1976 (Cth). It may be said for this purpose that the word "jurisdiction" can be defined as "authority to adjudicate" (Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 and a valuable paper written extrajudicially by Allsop J, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002", Australian Bar Review, vol 23, no 1, 2002, pp 29 - 60 at 30). We would prefer to say that "jurisdiction" is the authority to hear and determine a controversy. The difference in formulation is not of great importance but the alternative formulation allows a distinction to be drawn between the jurisdiction of the court to proceed to the ultimate determination of the controversy and the preliminary authority or jurisdiction of the Court first to determine whether it indeed has jurisdiction to proceed to hear and determine the controversy: Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158; Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; (1999) 94 FCR 384; Khatri v Price [1999] FCA 1289; (1999) 95 FCR 287. While the preliminary jurisdiction involves authority in the Court to do something, ie determine whether it has jurisdiction, that authority does not extend, unless jurisdiction is established, to determining the outcome of the controversy between the parties. Put another way, what is involved is a preliminary or qualified jurisdiction that is not jurisdiction in the ordinary sense to hear and determine a controversy.
13 In Burgundy Royale the claim which the Court was authorised to hear and determine was unsuccessful because the Territory was not bound by the Trade Practices Act 1974 (Cth). The Court did hear and determine the claim, but determined it adversely to the applicants in the proceedings. It did not engage in what we have called the preliminary jurisdiction.
14 It is obvious that in Burgundy Royale there was no need to consider whether, when there was an assertion of a federal matter, which viewed as a single controversy nevertheless involved what may be referred to as a non federal matter, the Court had jurisdiction, because of the assertion of the federal matter, to hear and determine non federal claims. That is the problem which faces us here.
15 The next case to which reference should be made is Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563. The case concerned a claim purporting to be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The applicant claimed, as well, the determination of a claim in contract. Davies J held that the decision which the applicant sought to challenge was not one made under an enactment so that the federal claim was dismissed. (His Honour also held that if he were wrong the applicant was not entitled to relief anyway). However, his Honour refused to strike out the contractual claim saying (at 565):
"The jurisdiction of the court under the ADJR Act has been invoked. The application is brought thereunder as a matter of substance, not as a matter of artificiality or subterfuge. The court has jurisdiction to deal with the claim and jurisdiction to deal with all other claims not otherwise within its jurisdiction arising out of the subject matter of the dispute: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd and Fencott v Muller..." (case citations omitted).
16 There have been subsequent decisions of single judges of the Court which have followed the decision of Davies J as a matter of comity: New South Wales Aboriginal Land Council v Aboriginal & Torres Strait Islander Commission (1995) 131 ALR 559 (per Hill J) and Buck v Comcare (1996) 137 ALR 335. However, in the former case Hill J suggested that although the question was clearly arguable his own preferred view was that jurisdiction was only conferred upon the Court where there was conduct or a decision under an enactment that was capable of review. If there was no such conduct or decision then there would be no accrued jurisdiction arising.
17 Later in Vietnam Veterans' Affairs Association of Australia New South Wales Branch v Cohen [1996] FCA 981; (1996) 70 FCR 419 Tamberlin J concluded that what Hill J had suggested was clearly arguable was in fact the correct view (at 434). The controversy is discussed by Professor Zines in a chapter in B Opeskin and F Wheeler (eds) The Australian Federal Judicial System, Melbourne University Press, 2000, p 295.
18 It is not necessary in the present case to resolve this controversy - indeed, the problem exposed in these cases may be distinguished from the problem here. If the view of Davies J is correct it turns upon the fact that the rejection of the ADJR Act claim as not involving a decision under an enactment formed part of the determination of the controversy, and not merely the determination of whether the Court had jurisdiction to proceed to hear and determine it. If the view of Tamberlin J is correct it proceeds upon the view that the enquiry dealing with the ADJR Act claim was merely the exercise of the preliminary jurisdiction to which we have referred.
19 What is, we think clear, however, is that where the federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the "matter" is one which is within the jurisdiction conferred upon the Court. If no federal jurisdiction is properly invoked then there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38; (1986) 161 CLR 543 at 553 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 per French J (at 598).
20 Allsop J in his paper appears to us to propound the view that all that is required to invoke federal jurisdiction for this purpose is that federal jurisdiction be asserted (but subject perhaps to the qualification that the assertion is bona fide and is not frivolous or colourable). His Honour cites the decision of a Full Court of this Court in Westpac Banking Corp v Paterson [1999] FCA 1609; (1999) 167 ALR 377 at 381 in support of this view. That was a case where a cross claim, not being colourable, attracted federal jurisdiction where it asserted a claim founded on Commonwealth legislation. But Westpac Banking Corp v Paterson seems rather to be a case where the cross claim was such that the Court had authority to proceed to hear and determine the issue involved, and thus the non federal part of the controversy, and not a case where the Court was first required to decide whether it had jurisdiction to hear and determine any federal claim at all.
21 It can be said in criticism of our view that the distinction we have sought to draw is a fine one. But it is a distinction which might need to be drawn where the question thereafter is whether the decision of this Court could be prohibited or quashed by the High Court under s 75 (v) of the Constitution because the Court has acted in excess of or failed to exercise its jurisdiction.
22 In the present case the controversy said to constitute the federal matter is one that is non justiciable. If this is the case, there is no federal matter at all. It follows in our view that, the Court not being seised of any "matter" in the constitutional sense, there can be no accrued jurisdiction.
23 We should here refer briefly to s 32(1) of the Federal Court of Australia Act 1976 (Cth), which provides:
"(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked."
24 There is a difference between what we have so far referred to as the accrued jurisdiction and the statutory jurisdiction conferred by s 32 to hear and determine matters not otherwise within the Court's jurisdiction which are associated matters. Section 32 is predicated upon the existence of some matter which is within the jurisdiction of the Court and with which the associated matter is associated. Here there is no such matter. Hence s 32 may be disregarded and it will be unnecessary to determine just what might constitute an associated matter: cf Philip Morris. That is the pivotal question which s 32 raises. The question is also well discussed in the Allsop J's paper at 47 to 49.
25 There is, we think, another difficulty for the applicants in the present case, even if, contrary to our view, assertion of a federal claim, without more, suffices to permit a party to invoke the accrued jurisdiction of the Court. The applicants would need to show that the confidential information claim was part of the "matter" that was a federal matter in the Court's jurisdiction, and not a separate and non federal matter.
26 While it is now without doubt that a "matter" in the constitutional sense, is a single justiciable controversy between the parties, there can be difficulties in identifying whether there is a single controversy or more than one controversy. In Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 ("Re Wakim") at [139] to [140] Gummow and Hayne JJ said:
"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..." (footnotes omitted).
27 As we said in our joint judgment on the separate question referred to the Full Court, the claim for confidential information does not have as an essential ingredient the validity of the concession said to have been granted to the applicants by Portugal. So far as it is possible from the somewhat sparse pleadings to discern the case proposed to be put forward by the applicants it can be said that while the Concession Agreement is likely to form part of the applicants' evidence, the case for the applicants is, to put it briefly, that the applicants had confidential information which related to the area of the concession which was appropriated as a result of the invasion in 1975 by Indonesia and which came into the possession of the respondents or some of them without authorisation. In our view that case lacks the necessary connection with the other claims advanced by the applicants to constitute part of a single controversy which includes the other claims which should be dismissed. As noted in the quotation from Re Wakim above, the question does involve a practical judgment. But with respect to the applicants, we find it hard to see that there is any common substratum of facts or for that matter that the confidential information claim and any other of the alleged federal claims arise out of "common transactions and facts" other than, of course, that the confidential information was said to relate to the area in respect of which the applicants had the concession which was granted to it. In our view the claims are "disparate" or "distinct" or "unrelated" to use adjectives derived from the cases to date where the word "matter" has been discussed.
28 It is true that a decision on the federal claim that a concession agreement was entered into by Portugal with the applicants on a particular day would be binding on the parties to the federal claim, even if they litigated the confidential information claim in another court. But that is a relatively small matter in the confidential information case as we understand it. In our opinion the connection between the claims is so remote that it would not be appropriate to regard them as constituting one controversy between the parties.
29 It follows therefore, that the confidential information claim would not attract the jurisdiction of the Court and must be dismissed. We would so order.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justice Hill. |
Associate:
Dated: 6 May 2003
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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JUDGES: |
BLACK CJ, BEAUMONT AND HILL JJ |
DATE: |
6 MAY 2003 |
PLACE: |
SYDNEY |
BEAUMONT J:
30 In my reasons given on 3 February 2003, I said of these claims:
"These are claims brought under the general law; that is, no statute is involved. Even if there may be said to be a `matter' here (in the sense of a `justiciable controversy'), it is, in my view, clear beyond argument that any such controversy does not itself `arise' under any federal law.Given my earlier conclusions that, even if this Court had jurisdiction, it should, for policy reasons, refuse to exercise it, what is the source, if any, of the Court's jurisdiction to entertain the free-standing claims for breach of confidence?
Two possible sources should be considered:
First, the Court's `accrued' jurisdiction, which is not lost merely because the federal claim is decided on the merits against the person raising it. But `there can be no accrued jurisdiction unless there are federal issues which [the] Court has jurisdiction to entertain' (Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd [1986] HCA 38; (1986) 161 CLR 543 at 553; Leslie Zines `Federal, Associated and Accrued Jurisdiction' in B. Opeskin and F. Wheeler (eds) The Australian Federal Judicial System (2000) at 294). Since, as I think, as a matter of substance, none of the claims made by the applicants previously considered raises a federal issue that is within this Court's jurisdiction to enforce, does it follow that the Court cannot have an `accrued' jurisdiction to entertain the breach of confidence claim? Further, in any event, is there, in these several claims, any `common substratum of facts' so as to justify their characterisation as a `single controversy' and thus one federal matter; or, may it be said, on the contrary, that the breach of confidence claims arise out of circumstances which are removed from those relied upon to propound the claims for compensation for expropriation of the Concession rights? (See Zines, e.g., op. cit. at 290 - 294; Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 per Gummow and Hayne JJ at [139] - [142]).
The other possible source of jurisdiction is the Court's `associated' jurisdiction, provided by s 32(1) of the Federal Court of Australia Act 1976 (Cth), its statute, conferring jurisdiction in respect of matters, not otherwise within its jurisdiction, that are `associated with matters in which the jurisdiction of the Court is invoked'.
Should the reasoning in Carlton & United in the case of `accrued' jurisdiction apply here also, as providing a proper and appropriate analogy in principle? In other words, is there implicit, if not explicit, in the provisions of s 32(1) a requirement that federal jurisdiction is otherwise properly invoked? As I am of the view that none of the applicants' claims previously considered even arguably raises a federal issue to be entertained, can any question of `associating' another `non-federal' issue arise?
Since it appears that these questions were not specifically addressed on the hearing before us, the parties should, in the circumstances, have leave to address these questions by further written submissions."
31 Submissions have now been received, and considered.
32 In my opinion, this Court has neither original nor "accrued" jurisdiction to entertain these claims.
33 It is clear, as previously mentioned, that since none of these claims arises under federal law, no original jurisdiction is attracted to entertain any of them.
34 Moreover, as Phillips has submitted (citing Carlton & United, above) a necessary element of the Court's exercising jurisdiction in respect of non-federal issues is that the Court's federal jurisdiction must first be invoked; that is, there must be a valid "grant of authority to adjudicate" upon a federal issue, per Windeyer J in Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 393, before any "accrued" jurisdiction in respect of a non-federal issue can be said to exist. (See Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [87].) It may be accepted, as was held in Burgundy Royale Investments Pty Limited v Westpac Banking Corporation (1987) 18 FCR 212, that failure on a federal issue which is legitimately raised, will not deprive the Court of authority to adjudicate on other non-federal claims which are part of the one "matter", in the sense explained in ASIC v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at 585 - 586. But what is necessary is that the Court's jurisdiction is legitimately invoked; and this can only occur if there is a federal, justiciable controversy (Moorgate Tobacco Co Ltd v Phillip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 477; Zines, above, at 294 - 295; Enid Campbell, "The Accrued Jurisdiction of the Federal Court in Administrative Law Matters" (1998) 17 Australian Bar Review 127 at 132; Australian Law Reform Commission, "Discussion Paper 64: Judicial Power of the Commonwealth" (2000) at [2.164]; Justice Allsop, "Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Australian Bar Review 29 at 48).
35 Moreover, in my opinion, there is not in all of the claims made by the applicants any "common substratum" of facts such as to justify their characterisation as a "single controversy"; in that the circumstances relied upon to advance the claims of breach of confidence are quite remote in every sense from those relied upon to propound the claims for compensation for expropriation of the Concession rights.
36 As indicated earlier, the remaining jurisdictional issue concerns the possible application of s 32(1) of this Court's statute, which confers jurisdiction "in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked."
37 In my opinion, the "associated" jurisdiction is not available here.
38 As Phillips submitted, on the face of s 32(1), in order for jurisdiction to be conferred in respect of a matter that is not otherwise within its jurisdiction, there must be a federal issue invoking the Court's jurisdiction, yet no such federal question exists here. The reasoning and the approach taken in Carlton & United reinforce this conclusion.
39 Further, as Gibbs J observed in Philip Morris Inc. v Adam P Brown Male Fashions Pty Limited [1981] HCA 7; (1981) 148 CLR 457 (at 495 - 496), "[s]peaking generally ... , given identity of parties, one matter is associated with another if the two matters arise out of the same, or closely connected, facts". Here also, the nature and timing of the confidential information claims made by the applicants are so remote as to contradict their characterisation as something "associated" with the applicants' expropriation claims (cf. PCS v MUA [1998] HCA 29; 153 ALR 520, per Gaudron J at 524 - 525).
40 I would also dismiss the confidential information claims for want of jurisdiction also.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: 6 May 2003
Counsel for the Applicants: |
Mr F. Douglas QC Mr C. Ward Mr G. Kennett |
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Solicitor for the Applicants: |
Deacons |
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Counsel for the First Respondent: |
Mr D. Bennett QC Mr H. Burmester QC Mr S. Lloyd Ms R. Irwin |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Third, Fourth and Fifth Respondents: |
Mr T. Bathurst QC Mr S. Gageler SC Dr A. Bell |
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Solicitor for the Third, Fourth and Fifth Respondents: |
Freehills |
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Date of Applicants' Submissions: |
13 March 2003 |
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Date of First Respondent's Submissions: |
28 March 2003 |
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Date of Third, Fourth and Fifth Respondents' Submissions: |
3 March 2003 |
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Date of Judgment: |
6 May 2003 |
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