The existence of a matter
20 The usual starting point for an inquiry into whether a matter exists for the purposes of the conferral of the judicial power of the Commonwealth upon a Court is the judgment of the High Court of Australia in In re Judiciary & Navigation Acts (1921) 29 CLR 257 at 265. There, the Court said:
"It was suggested in argument that 'matter' meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word 'matter' in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court."
21 This passage was cited by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 603, where their Honours then said:
"It follows that a particular federal matter may be part only of a proceeding (as Menzies J. observed in Felton v. Mulligan [(1971) 124 CLR 367 at 382 - 383]) and it is possible to envisage a proceeding where a party seeks to litigate both a federal claim and a distinct and unrelated non-federal claim (as Stephen, Mason, Aickin and Wilson JJ. observed in Moorgate Tobacco Co. Ltd. v Philip Morris Ltd [(1980) 145 CLR 457 at 482]). On the other hand, particular legal proceedings may relate to part only of what should properly be seen as the one larger 'matter'. An obvious example is to be found in the not uncommon situation under pre-Judicature Act systems where separate proceedings in equity lay in certain circumstances to enjoin a plaintiff in common law proceedings from pursuing his common law rights.
Though the concept of 'matter' may be narrower than that of a 'legal proceeding', it is a term of wide import. 'The word "matters"', Griffith C.J. said in South Australia v. Victoria [(1911) 12 CLR 667 at 675], 'was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice'. The concept of 'matter' as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris."
22 Cases such as Philip Morris and Fencott were concerned mainly with the concept of a matter as a means of attracting to federal jurisdiction non-federal elements of a controversy. They were not concerned with attempting to define the limits of a matter as to parties, subject-matter or time. By contrast, AIG's application for leave to appeal raises the question whether there can be a matter in which a non-party to a proceeding seeks to question by way of appeal the correctness of a judgment given in that proceeding when no party to that proceeding has exercised or proposes to exercise a right of appeal. To say that a matter is a justiciable controversy as to some immediate right, duty or liability may be a useful definition for some purposes, but it does not provide a ready answer to the question at issue here. It is necessary to explore to some extent the limits of the concept of a matter.
23 For the purpose of seeking to discern the principles according to which the limits of a matter may be determined, it may be assumed that a particular person has engaged, or proposes to engage, in conduct that might be alleged to involve a contravention of some law. It may also be assumed that such conduct might give rise to a legal duty or liability on the part of that person towards another person, or might give rise to a right of the second person against the first person. It can hardly be imagined that the mere existence of these facts can give rise to a matter. The second person may be totally unaware of the occurrence or threat of the conduct. Even if aware, the second person may choose, or be constrained by circumstances, to do nothing to enforce the right, duty or liability. The potential for the creation of a matter exists, but no matter has been created. It is only when the second party takes some step to create a justiciable controversy about the conduct in question that a matter will come into existence. It may be that threatening to commence legal proceedings unless the first person desists from the conduct or makes amends would be sufficient. By that act, the parties will have been brought into conjunction in relation to the conduct in a way that brings about a justiciable controversy. The actual commencement of a legal proceeding in relation to the conduct will certainly have that effect.
24 It may be that the conduct, or threatened conduct, in question will give rise to a range of rights in, or duties or liabilities owed to, a number of different persons. Some of those persons may choose, or be constrained by circumstances, to do nothing in relation to the conduct. Others may threaten or take legal proceedings. It could hardly be contended that the matter or matters that come into existence as a result of the actions of those who do threaten or take legal proceedings include as parties those who do nothing.
25 The possibility of a multiplicity of parties gives rise to the question whether, when legal proceedings are threatened or instituted, there will be a single matter, or more than one matter. There can be no doubt that it is possible for a matter to have many parties, even in a situation where the rights, duties and obligations at issue are not the same in relation to each of those parties. There is also no reason why there cannot be a number of separate matters connected with the same conduct, involving different parties, where there has been no step taken to bring the parties into conjunction, and thereby to create a single matter. Joinder of all the relevant parties into a single proceeding is an obvious example of such a step. It is possible, however, that separate proceedings may be part of a single matter: Hooper v Kirella Pty Ltd [1999] FCA 1584 (1999) 96 FCR 1 at [53] - [55]. The question whether there is a single matter or more than one matter, when rights, duties or obligations of a number of parties in relation to a single subject matter, if it needs to be answered, does not appear to be easy.
26 The difficulty in identifying whether there exists one matter or more than one matter is not limited to the issue of parties. Differences among the rights, duties or liabilities sought to be enforced may give rise to the view that a single justiciable controversy does not exist, but that more than one such controversy exists. Of particular importance in the present case is the question whether the fact that a proceeding is an appeal means that there is underlying it a matter separate from the matter that underlay the proceeding which led to the judgment from which the appeal is brought. In a proceeding at first instance, the controversy is as to the ascertainment of the facts that form the basis of the complaint or complaints the subject of the case, and the application to those facts of the remedy or remedies sought. Once judgment is given in the proceeding, that controversy is quelled. The question then arises whether the matter has been brought to an end by the judgment quelling the controversy, or whether the matter remains alive because of the possibility of appeal.
27 On the one hand, the view can be taken that the matter underlying a first instance proceeding must remain alive even after judgment has been given. It may be necessary for the judgment to be amended, even after it has been perfected, because of a slip. The alternative view is that an application to amend a judgment because of a slip gives rise to a new matter, namely a controversy about whether the judgment as recorded represents correctly the conclusion of the court about every aspect of the proceeding. In similar fashion, it might equally be said that the original matter remains alive after judgment, for the purpose of the possible exercise of a right of appeal, or that the exercise of the right of appeal gives rise to a new matter, namely a controversy about the correctness of the judgment appealed from. Of course, the controversy in any appeal will involve some or all of the elements that made up the controversy at first instance, but this provides no ground for saying that the appeal must be regarded as part of the same controversy as led to the first instance judgment for the purposes of the application of the concept of matter.
28 Although there has been little discussion of the two possible views about an appeal, the prevailing view in the High Court of Australia seems to be that the matter underlying an appeal is separate from the matter underlying the proceeding in which the judgment from which the appeal is brought was given.
29 In Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315, the question was whether it was open to the High Court of Australia to remove an appeal pending in the Court of Appeal in New South Wales into the High Court, pursuant to s 40 of the Judiciary Act 1903 (Cth). The High Court held that such a removal was permissible, and that dealing with the proceeding so removed would be an exercise of the original, and not the appellate, jurisdiction of the High Court. At 323, the High Court said:
"For present purposes we do not need to discuss the word 'matter' in s. 76, for that task has been undertaken on many occasions in the past. It is sufficient to make the point that 'matter' is wide enough to include any subject-matter for determination in legal proceedings, whether the proceedings be proceedings at first instance or proceedings by way of an appeal. When s. 76(i) is so understood, it enables the Parliament to confer original jurisdiction on the High Court in such a matter, not only when the matter is litigated in proceedings commenced in the High Court, but also when the matter arises in proceedings in some other court, whether the matter arises in proceedings at first instance or by way of appeal."
The issue in that case did not require the High Court to determine whether the appeal in New South Wales was in a separate matter from the proceeding at first instance. Nor did the High Court express a view as to whether there was or was not involved a single matter.
30 More recently, in Macleod v Australian Securities & Investments Commission [2002] HCA 37 (2002) 76 ALJR 1445, the High Court dealt with an issue as to whether a federal statutory authority, which had unsuccessfully prosecuted a person for offences under State legislation, could avail itself of a right of appeal given to a person aggrieved by a decision, again by State legislation. It was held that the State provision for appeal did not empower the federal statutory authority to institute the appeal. At [6], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
"The nine heads of 'matters' which fall within federal jurisdiction are identified in Ch III of the Constitution as to some by the source of the rights and liabilities in question or by the remedy sought. However, s 75(iii) is attracted by the presence of the Commonwealth as a 'party' in a 'matter'; the rights or liabilities which supply content to the 'matter' in question; and the nature of the remedy sought are to be ascertained aliunde. In the proceeding in the Court of Petty Sessions, the identity of the ASC as the complainant attracted the exercise by that Court of federal jurisdiction; the liability sought to be established in the proceeding, and the substantive content of the 'matter' within the head of s 75(iii) was the determination of liability for contravention of certain laws of Western Australia and the imposition of penalties if liability was established. It is accepted that, for the purposes of Ch III of the Constitution, in particular s 75(iii), the ASC is to be regarded as 'a party' which is 'the Commonwealth'."
31 Their Honours then discussed the subsequent history of the proceedings at [13] - [18]. Relevantly, their Honours said:
"In November 1998, after a summary hearing before a magistrate in the Court of Petty Sessions, Mr Macleod was convicted in respect of the second count, concerning the prediction of the annual profit. He was found not guilty in respect of the first count, concerning the recovery of diamonds.
The decision and orders by the magistrate resolved the controversy between the ASC and Mr Macleod, namely the determination of his liability for contravention of State law upon the two counts in question. That particular exercise of federal jurisdiction was thereby concluded. However, Pt VIII (ss 183-219) of the Justices Act provided for appeals. In particular, s 185 provided for an appeal, by leave, to the Supreme Court of Western Australia constituted by a single judge.
…
The appeal came before a Commissioner sitting as a single judge of the Supreme Court. The ASC appeared, by counsel, as the respondent.
The presence of the ASC as a party again attracted the exercise of federal jurisdiction, on this occasion by the Supreme Court, but in a 'matter' in which the right sought to be vindicated was that conferred upon Mr Macleod as an appellant by Pt VIII of the Justices Act. In particular, Mr Macleod sought to have removed his conviction on count 2 of the complaint and the controversy was whether the Court of Petty Sessions had erred in convicting him. On 31 May 1999, the Commissioner, pursuant to s 199 of the Justices Act, ordered that the appeal be allowed, the judgment of the Court of Petty Sessions be set aside and in place thereof it be ordered that counts 1 and 2 of the complaint be dismissed with Mr Macleod to have his costs of those proceedings. The Commissioner also ordered that the ASC pay Mr Macleod's costs of the appeal to the Supreme Court.
…
Section 206A(2) of the Justices Act conferred standing to apply for leave to appeal (and, inferentially, to institute and conduct an appeal if leave be granted) upon 'a party' to the first appeal. The ASC had been a party to the appeal before the Commissioner and thus answered the description in par (a) of s 206A(2). On the application by the ASC, the Full Court (Malcolm CJ, Ipp and Parker JJ) on 16 August 1999 granted leave to appeal from the decision of the Commissioner. Thereafter, on 13 April 2000, the Full Court (Ipp, Anderson and Owen JJ) allowed the appeal, ordered that the orders made by the Commissioner be set aside, that the conviction on count 2 be restored, the costs order made by the magistrate be reinstated and Mr Macleod pay the ASC's costs of the appeal to the Commissioner and to the Full Court."
32 Their Honours characterised these events at [20] as follows:
"The presence of the ASC as a party had engaged the Commissioner, as it had the Court of Petty Sessions, in the exercise of federal jurisdiction. Likewise, by appealing, with leave, to the Full Court, the ASC engaged the Full Court in the exercise of federal jurisdiction in a 'matter' in which the Commonwealth was a party within the meaning of s 75(iii) of the Constitution. However, at each level, the 'matter' had a distinct substantive content supplied by State law. At the Full Court level, the liability which the ASC sought to establish was that of Mr Macleod to suffer the setting aside of the orders in his favour by the Commissioner and the reimposition of the penalty imposed at first instance in respect of the conviction on count 2."
33 These statements clearly support the view that an appeal is conceived as being based upon a matter separate from the matter on which the first instance proceeding was based. In essence, the substance of the matter underlying an appeal is the controversy as to whether the judgment below should be set aside and orders different from those made in the court below should be made. Support for that view is also to be found in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (2002) 188 ALR 1. In that case, the controversy at first instance was as to whether a doctor who desired to provide fertilisation treatment to a woman who was neither married nor living with a man in a de facto relationship was not precluded by State legislation from providing that treatment, on the ground that the State legislation was inconsistent with federal legislation. In the course of the proceeding at first instance, two conferences of bishops had applied to be heard as amici curiae and had been so heard. Following the judgment in that case, no party to the case exercised the right of appeal available to the unsuccessful parties. The two conferences of bishops, one with the fiat of the Attorney-General for the Commonwealth, instituted a proceeding in the High Court, seeking to quash by certiorari the judgment at first instance. By a majority, the High Court held that they had no standing to institute the proceeding. In doing so, the majority of the court recognised that, for it to have jurisdiction to entertain an application for certiorari, there would have to be a matter in the constitutional sense. There was no such matter, because there was no justiciable issue between the bishops (or the Attorney-General as relator in one proceeding) on the one hand and the doctor or the judge at first instance on the other hand. At [64], Gaudron and Gummow JJ said:
"The subject-matter for determination in each proceeding is whether there is an error of law on the face of the record of the Federal Court, represented by the outcome of the proceeding before Sundberg J, and the purging of that record by administration of a remedy in the nature of certiorari. None of the applicants presents a claim for declaratory relief to reflect a particular view of the construction of the Commonwealth Act and the State Act and the operation of s 109 of the Constitution. Rather, the whole of the relief the applicants seek is directed to the outcome of the particular proceeding which was disposed of in the Federal Court."
34 At [246], Hayne J said:
"Reduced to its essentials, the application to this Court is by a third party (here the Episcopal Conference and the Commonwealth Attorney-General) for orders that rights, duties and obligations declared to exist as between two other parties (Dr McBain and State of Victoria) are not as they were determined to be by Sundberg J. Understood in that way it is apparent that the claim gives rise to no 'matter' except, of course, the controversy in this Court about whether there is a 'matter'. (It is desirable to add this qualification, if only to point out that that latter controversy unquestionably founds the jurisdiction of this Court to entertain the applications that have been made.) The applications will quell no controversy about any immediate right, duty or liability of the applicants for relief; each application seeks only to enliven the subject-matter of a controversy between others which has already been quelled by the application of judicial power."
35 It is of no moment for present purposes to attempt to distinguish between an application to the High Court of Australia for certiorari and an appeal to the Full Court of this Court pursuant to s 24 of the Federal Court Act. In either case, there can be no jurisdiction to deal with a proceeding unless there is a matter to form the basis for that jurisdiction. The reasoning in Macleod and McBain supports the view that jurisdiction to hear an appeal is based on a matter separate from that underlying the proceeding in which the judgment the subject of the appeal was given. In my view, that reasoning also supports the view that jurisdiction to hear the application for leave to appeal is founded on a separate matter again, in which the controversy is as to whether leave can, and should, be granted. If it were otherwise, the mere bringing of an application for leave to appeal would itself provide the answer to the first question arising on such an application, namely whether there exists a matter on which to found jurisdiction for the proposed appeal.
36 AIG was not a party to the proceeding in which the judgment of Kenny J was given. It makes no case to the effect that it sought to vindicate any right, duty or obligation in a way that would have made it a party to the matter in which that proceeding was brought. It may therefore be unnecessary to decide whether its proposed appeal would itself be a separate matter or part of the same matter as the dispute between Emwest and the Union that was resolved by the judgment of Kenny J or by the subsequent agreement between them.
37 In my view, it is necessary for AIG to show that there is a justiciable controversy between it and the Union as to the correctness of the judgment of Kenny J, before it can be granted leave to appeal. In other words, it needs to show that it seeks to vindicate against the Union some immediate right, duty or liability of AIG, not merely to enliven the subject-matter of a controversy between others which has already been quelled by the application of judicial power. This leads to an inquiry as to the standing of AIG to seek some remedy or relief against the Union.
38 The question whether a party has standing to bring the proceeding may be part of the controversy that constitutes the "matter", so that it is not always necessary to establish that there is a party with standing to bring a proceeding, in order that there can be a matter in existence. The relationship between standing and a matter was explained by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 (2000) 200 CLR 591 at [45] - [49] as follows:
"Once it is accepted that neither the concept of 'judicial power' nor the constitutional meaning of 'matter' dictates that a person who institutes proceedings must have a direct or special interest in the subject matter of those proceedings, it follows as was pointed out in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [(1998) 194 CLR 247 at 262] that, for the purposes of Ch III of the Constitution, 'questions of "standing", when they arise, are subsumed within the constitutional requirement of a "matter".' This does not mean that, for the purposes of Ch III, questions of standing are wholly irrelevant.
There may be cases where, absent standing, there is no justiciable controversy. That may be because the court is not able to make a final and binding adjudication. To take a simple example, a court could not make a final and binding adjudication with respect to private rights other than at the suit of a person who claimed that his or her right was infringed. Or there may be no justiciable controversy because there is no relief that the court can give to enforce the right, duty or obligation in question.
The relationship between 'standing' and available relief was adverted to by Aickin J in Australian Conservation Foundation v The Commonwealth. In that case his Honour observed [(1980) 146 CLR 493 at 511]:
'it is an essential requirement for locus standi that it must be related
to the relief claimed. The "interest" of a plaintiff in the subject matter
of an action must be such as to warrant the grant of the relief
claimed. I do not mean that, where the relief is discretionary, locus
standi depends on showing that the discretion must be exercised
favourably. What is required is that the plaintiff's interest should be
one related to the relief claimed.'
That passage not only poses the test to be applied when there is a question of standing but, in my view, discloses the significance of standing to the existence of a matter for the purposes of Ch III of the Constitution.
There is no matter within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceedings in question. That follows from the essential features of 'matter' identified in In re Judiciary and Navigation Acts. It was said in that case [(1921) 29 CLR 257 at 265 - 266]:
'there can be no matter . . . unless there is some immediate right,
duty or liability to be established by the determination of the Court
. . . [And the legislature] cannot authorise [the] Court to make a
declaration of the law divorced from any attempt to administer that
law.'
Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v The Commonwealth [(1999) 197 CLR 510 at 526], '[i]f there is no legal remedy for a "wrong", there can be no "matter".'"
39 Thus, both for the purposes of determining whether there is a matter, and for the purposes of deciding whether leave to appeal should be granted if there is, it is necessary to deal with the question of the standing of AIG.