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[2010] FCA 379
respondent. Judgment entered for each Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); Applicant ordered to pay each Respondent's costs; title of Third Respondent amended to...
Campisi sued the Commonwealth, Victoria and a state water corporation under s 100 of the Constitution. Respondents moved to dismiss on the ground the pleadings did not disclose a justiciable 'matter' or any Commonwealth law/regulation abridging s 100 rights and that the state corporation's powers derived from state law. After hearing submissions, the applicant's counsel accepted those criticisms and consented to summary dismissal under s 31A(2). The Court entered judgment for the respondents, ordered costs, and corrected the third respondent's name.
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1,762 words · generated 03/08/2026
This proceeding was commenced by application on 21 April 2009 by Mr Domenico Campisi against the Commonwealth, the State of Victoria and the Lower Murray Urban and Rural Water Corporation (referred to in the reasons as the Third Respondent) (Reasons [1]). The applicant alleged, in substance, that the Commonwealth, assisted by the State and the Third Respondent, had contravened s 100 of the Constitution (Reasons [5]). The respondents promptly challenged the adequacy of the pleadings and sought summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Reasons [2]–[4]).
3 cited instruments linked from this judgment.
The respondents argued two principal points: first, that the applicant had not pleaded a 'matter' within Chapter III of the Constitution and s 39B of the Judiciary Act 1903 (Cth) so as to give the Court jurisdiction; second, that the applicant had failed to identify any Commonwealth law or regulation of trade or commerce said to abridge rights protected by s 100 (Reasons [6]–[7]). The State of Victoria emphasised that any restrictions on the applicant's asserted rights derived from the Water Act 1989 (Vic), and contended that s 100 did not impinge on the validity of that Victorian statute; it also observed that the applicant had not pleaded facts to show the State acted as agent of the Commonwealth (Reasons [8]). The Third Respondent noted it was constituted under s 85 of the Water Act 1989 (Vic) and derived all powers, functions and duties from that Act, with no Commonwealth source of power pleaded (Reasons [9]).
After oral argument, counsel for the applicant sought a short adjournment, obtained instructions and conceded the force of the respondents' submissions (Reasons [10]). He accepted that the Statement of Claim suffered from such deficiencies that there was no reasonable prospect of successfully prosecuting the proceeding, and consented to orders dismissing the proceeding under s 31A(2) and for costs to each respondent (Reasons [10]–[11]). The Court made the consent orders and amended the Third Respondent's name (Orders; Reasons [12]).
The decision is grounded in two procedural and jurisdictional principles recorded in the reasons.
First, the Court requires that a proceeding invoke a justiciable 'matter' under Chapter III and s 39B of the Judiciary Act 1903 (Cth) for federal jurisdiction to arise (Reasons [6]). The Commonwealth submitted the pleadings failed to show such a 'matter' and therefore the Court lacked jurisdiction; this submission was accepted, by the applicant's counsel, at the hearing (Reasons [6], [10]).
Second, the Court may order summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) where there are no reasonable prospects of the applicant succeeding (Reasons [1]–[3], [11]). The respondents developed detailed written and oral submissions that the pleadings disclosed no law or regulation of trade or commerce which could be said to abridge rights under s 100, and no facts establishing that the State acted as agent of the Commonwealth (Reasons [7]–[8]). The Third Respondent's statutory basis under s 85 of the Water Act 1989 (Vic) reinforced the absence of pleaded Commonwealth involvement (Reasons [9]). When the applicant's counsel accepted these points, the factual and legal foundations necessary to establish a s 100 contravention were conceded to be lacking; dismissal on the basis there was no reasonable prospect of success therefore followed as a proper exercise of the s 31A(2) power (Reasons [10]–[11]).
Importantly, the judgment records the concession by the applicant's counsel as decisive. The Court did not embark upon an extended constitutional analysis of s 100 or a detailed treatment of whether the Water Act impinged upon s 100; rather the procedural defects in the pleadings, and the applicant's concession, determined the outcome (Reasons [10]–[11]).
Before this judgment: The judgment assumes the established procedural framework: federal jurisdiction under Chapter III requires a 'matter'; the Court has power under s 31A(2) to summarily dispose of proceedings that lack reasonable prospects of success. The decision does not purport to change or develop the substantive constitutional law concerning s 100.
After this judgment: The case is an instance of the Court exercising s 31A(2) to dispose of a proceeding where the pleadings did not identify a proper jurisdictional foundation or disclose a viable legal claim. It emphasises that in constitutional claims, pleadings must identify the specific law or regulation alleged to infringe constitutional rights and must plead facts to establish any asserted agency relationships between State actors and the Commonwealth. The Court's short reasons do not develop new interpretive doctrine on s 100 or the operation of state water statutes; rather they confirm that inadequate pleading of the legal and factual foundations for constitutional claims can justify summary dismissal.
Reasons [5]: The judgment reproduces s 100 verbatim: "The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of the State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation." Plain-English: s 100 protects a State's and its residents' right to reasonably use river waters for conservation or irrigation from Commonwealth laws or regulations of trade or commerce that would abridge that right.
Reasons [6]–[7]: "The Commonwealth contended that the application was incompetent because it did not give rise to a 'matter' ... and because the Applicant did not have reasonable prospects of successfully prosecuting the proceeding." Plain-English: The Commonwealth argued the Court lacked jurisdiction because the lawsuit did not present a legal dispute that the federal courts can decide, and that the case had no realistic chance of success.
Reasons [8]–[9]: The State observed any restrictions came under the Water Act 1989 (Vic) and the Third Respondent's powers flowed from s 85 of that Act. Plain-English: The State and the water corporation were saying that the source of any action or restraint was Victorian law and institutions; nothing in the pleadings linked those state laws or agencies to Commonwealth authority or a Commonwealth law/regulation that could breach s 100.
Reasons [10]: "Counsel acknowledged the force of the arguments ... and accepted that the statement of claim suffered from such deficiencies as to justify the Court concluding that he had no reasonable prospect of successfully prosecuting the proceeding." Plain-English: After hearing the respondents' legal arguments, the applicant's lawyer agreed the lawsuit was legally defective and had no realistic chance, and therefore consented to its dismissal.
This decision is applicable as a procedural precedent where:
a plaintiff brings a constitutional claim in federal court based on an asserted breach of a constitutional protection (here s 100), but fails in the pleading to specify the Commonwealth law or regulation said to abridge the right; and/or
a plaintiff sues a state or state statutory body but does not plead facts to show an agency relationship or other connection to Commonwealth law or regulation; and/or
respondents can show that the purported restrictions or actions arise under state legislation (here Water Act 1989 (Vic) and s 85), leaving no pleaded basis for a Commonwealth-grounded constitutional claim; and/or
the pleading defects are such that, on respondents' submissions and the plaintiff's subsequent concession, there is no reasonable prospect of the plaintiff succeeding, making summary dismissal under s 31A(2) appropriate.
In short, defective pleadings on jurisdictional and substantive elements of a constitutional claim that leave no realistic prospect of success are the triggering pattern.
This judgment itself records no subsequent treatment by later courts; the reasons do not cite or apply other judgments nor does the text discuss subsequent authorities (the reasons are short and procedural). From this judgment alone, one cannot identify how later courts have treated Campisi; that requires searching subsequent citations or authorities, which are not present in the reasons. The present decision should therefore be treated as a single-instance example of summary dismissal for pleading defects rather than a developed precedent on the substantive scope of s 100.
Several questions remain open, which the Court did not decide because the proceeding was dismissed on procedural grounds with the applicant's consent:
Substantive scope of s 100: The Court did not undertake a detailed constitutional analysis of what kind of Commonwealth laws or regulations amount to an abridgement of the right protected by s 100. The reasons do not define the boundaries of 'law or regulation of trade or commerce' in the context of s 100; this substantive question remains open in this judgment (see Reasons [5], [7]).
Interaction between state water legislation and s 100: The State submitted that s 100 'did not impinge on the validity of the Victorian Act' (Reasons [8]), but the Court did not decide whether particular provisions of the Water Act 1989 (Vic) would be incompatible with s 100 if challenged on adequately pleaded facts; that question is not resolved by this decision.
Agency or state action connected to Commonwealth authority: The judgment records the absence of pleaded facts showing the State acted as agent of the Commonwealth (Reasons [8]). What factual matrix would suffice to establish agency or Commonwealth control over state water administration for s 100 purposes is not addressed.
Threshold for 'matter' where constitutional rights are asserted: The Court concluded there was no 'matter' in the particular pleadings, but it did not articulate a generalised checklist of pleading requirements for establishing a 'matter' in s 100 claims. The precise pleading content necessary to create a justiciable 'matter' in analogous cases remains to be clarified.
Role of consent in disposing constitutional claims: The decision turned on the applicant's counsel's concession (Reasons [10]). It raises the procedural point that where a plaintiff concedes lack of prospects, courts will dispose of proceedings, but it leaves open how courts might proceed if a plaintiff persists in a weakly pleaded constitutional claim.
These open questions would need to be resolved in future litigation where the pleadings properly identify the contested Commonwealth law or regulation, plead the necessary facts to show agency or Commonwealth involvement, and the court engages in substantive constitutional analysis rather than dismissing for pleading defects.
Disclaimer: This is a structured analysis of the judgment Campisi v Commonwealth of Australia [2010] FCA 379 based only on the text of the reasons and orders quoted above. It is legal information, not legal advice. I can make mistakes; before you act on or rely on this analysis or any draft derived from it, have a qualified Australian lawyer check it.
REASONS FOR JUDGMENT 1 This proceeding was commenced by application on 21 April 2009. At the earliest opportunity the Respondents drew attention to what they submitted were significant deficiencies in the manner in which the Applicant sought to plead his case. An adjournment of some months was granted following which an Amended Application and a Statement of Claim were filed. 2 The Respondents continued to object to the efficacy of the pleadings and sought orders that the proceeding be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). 3 The Respondents filed and served detailed written submissions in support of their motions for summary dismissal. The Applicant had the opportunity of considering those submissions and filed and served answering submissions. 4 The notices of motion were made returnable this morning and each Respondent developed its submissions in support of its motion. 5 In substance the Applicant's case was that the Commonwealth, aided and abetted in various ways by the State of Victoria and the Third Respondent (which is a statutory authority created under Victorian legislation), had contravened s 100 of the Constitution. Section 100 provides: "The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of the State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation." 6 The Commonwealth contended that the application was incompetent because it did not give rise to a "matter" within the meaning of Chapter III of the Constitution and s 39B of the Judiciary Act 1903 (Cth) and because the Applicant did not have reasonable prospects of successfully prosecuting the proceeding. 7 The Commonwealth submitted that the Court should be satisfied that there was no reasonable prospect of the Applicant's succeeding because of the absence of a "matter" (and, therefore, jurisdiction) and the failure of the Applicant to identify any law or regulation of trade or commerce which abridged the Applicant's rights to reasonable use of the waters of the Murray River for irrigation. 8 The State of Victoria supported the Commonwealth's application. It submitted that any restrictions or limitations on the Applicant's right to use River Murray waters for irrigation were imposed under the Water Act 1989 (Vic). Section 100 of the Constitution did not impinge on the validity of the Victorian Act. Furthermore, the Applicant's Statement of Claim did not identify any legislative or factual basis for submitting that the State of Victoria relevantly acted as an agent of the Commonwealth. 9 The Third Respondent also supported the summary dismissal application. It pointed out that it was established pursuant to s 85 of the Water Act 1989 (Vic). All its powers, functions and duties were derived from that Act. It did not have any powers, functions or duties conferred upon it under any Commonwealth legislation. 10 It is not necessary to recount the Respondents' arguments in any greater detail. This is because, having heard the Respondents develop their arguments, counsel for the Applicant sought a short adjournment during which he obtained instructions from his client to consent to the making of orders under s 31A of the Federal Court of Australia Act 1976 (Cth). Counsel acknowledged the force of the arguments raised against his client and accepted that the statement of claim suffered from such deficiencies as to justify the Court concluding that he had no reasonable prospect of successfully prosecuting the proceeding. 11 In these circumstances he consented to orders that the proceeding be dismissed and that his client should pay the costs of each Respondent. These orders will be made. 12 The Third Respondent also sought an order amending the title under which it was sued. It is properly entitled the "Lower Murray Urban and Rural Water Corporation". The Applicant did not oppose this application. An order amending the title of the Third Respondent will be made. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.
Campisi
Commonwealth of Australia[2010] FCA 379
Judgment entered for each Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); Applicant ordered to pay each Respondent's costs; title of Third Respondent amended to 'Lower Murray Urban and Rural Water Corporation' (Orders 1–3; Reasons [11]–[12]).