Fencott v Muller

Fencott v Muller - [1983] HCA 12 - HCA 1982 case summary — Zoe

[38]

It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. In extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call "accrued" jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter. And thus his Honour, in defining the matter in the proceedings between Philip Morris and Adam P. Brown did not identify it as a cause of action but said [61] : The substantial matter between the parties was their difference as to the assertion of and attempt to protect the rights claimed to belong to the plaintiffs by reason of the trade marks or the acquired business reputation. The claim to relief under Ch. V of the Act was one endeavour to protect these rights. The claim to equitable relief for passing off was another. The former attracted federal jurisdiction: the latter, not being disparate and independent of the former, was part of the whole matter between the parties and thus within the accrued federal jurisdiction. Thus, it seems to me that the federal jurisdiction attracted by the claim for misleading and deceptive conduct extends to the resolution of the entire matter between the parties, which includes the claim for passing off, not merely as an associated claim but as part of the entirety of the matter between the parties in relation to which federal jurisdiction has been attracted. 1. (1911) 12 C.L.R. 667, at p. 675. 2. (1981) 148 C.L.R., at p. 475. 3. (1981) 148 C.L.R., at pp. 479-480.

[69]

The only possible source of relevant jurisdiction is that conferred on the Federal Court by s. 86 of the Act, namely, jurisdiction to hear and determine actions, prosecutions and other proceedings under Pt VI of the Act. In Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. [22] this Court by majority decided that a claim which is not itself based on a federal law may nevertheless fall within the jurisdiction of the Federal Court if it forms part of the matter which attracted that jurisdiction. In that case the federal claim, like the present one, was for damages in accordance with s. 82 of the Act for misleading or deceptive conduct in contravention of s. 52. It was held that a common law claim for damages for passing off was inseverable from the claim under s. 82 and consequently formed part of the matter constituted by that federal claim. Aickin J. and I dissented. We each drew what we considered to be a vital distinction between the range of claims which might be comprehended within a matter involving the interpretation of the Constitution (Constitution, s. 76(i)) and those to which a matter arising under a law of the Commonwealth (Constitution, s. 76(ii)) might refer. With respect, it still seems to me, as it seemed to me then, that the doctrine established by earlier decisions of this Court touching the scope of the word "matter" in s. 76(i) was inapplicable to the very different context in which the word "matter" appears in s. 76(ii). It is true that all the members of the Court in Philip Morris [22] proceeded on the basis that s. 86 of the Act, although referring to "actions, prosecutions and other proceedings under this Part", was to be construed as if it was an investiture of jurisdiction in "matters arising under this Part". Whether the same difference of opinion would have emerged had the consideration been confined to the actual wording of the section may be a question. For my part, just as I was inclined to limit the content of a matter arising under a law of the Commonwealth to rights, duties, privileges, protections or immunities which actually owed their existence to the federal law or depended upon the federal law for their enforcement (cf.R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [23] ) so I think it follows that "actions, prosecutions and other proceedings under this Part" means exactly what the words say. Part VI provides an exhaustive enumeration of the claims that are within the jurisdiction of the Federal Court.

[127]

Each of those cases concerned the jurisdiction which under s. 76(i) of the Constitution may be conferred upon the High Court "in any matter [a]rising under this Constitution, or involving its interpretation". That jurisdiction is conferred upon the High Court by s. 30(a) of the Judiciary Act 1903 using the wording of s. 76(i): "in all matters arising under the Constitution or involving its interpretation." It may be observed that effective jurisdiction was conferred in this way simply by adopting the wording of s. 76(i) whereas, by way of contrast, effective, or substantive, jurisdiction could not, without more, conveniently be conferred upon the Federal Court by adopting the wording of s. 76(ii): "any matter [a]rising under any laws made by the Parliament." As s. 19(1) of the Federal Court of Australia Act shows, further provision was needed to confer substantive jurisdiction upon the Federal Court; its jurisdiction under the Trade Practices Act is that which is defined by that Act. The point is, of course, that the meaning of the word "matters" arises as a matter of construction in determining the limits of the jurisdiction of the High Court under s. 30(a) of the Judiciary Act and, because the same words are used, s. 76(i) of the Constitution. The authorities relied upon by the majority in the Philip Morris Case were concerned with the meaning of the word "matter" or "matters" because it was used in the definition of the jurisdiction of the High Court and fell to be construed when that jurisdiction was in question. But the jurisdiction of the Federal Court is nowhere conferred in terms of "matters" and the meaning of the words "any matter" in s. 76(ii) of the Constitution could only arise in relation to the Trade Practices Act if there were some question that the jurisdiction conferred by that Act upon the Federal Court was beyond the power of the Parliament. No such question (except in relation to s. 32(1) of the Federal Court of Australia Act) arose in the Philip Morris Case nor does it arise in the present case.

[136]

Support for the view taken by the majority in the Philip Morris Case may be found, by analogy, in the interpretation which has been given in the United States to Art. III of that country's Constitution. The Supreme Court has there adopted an expansive view of the pendent jurisdiction, as it is called, of federal courts. See, e.g., Hurn v. Oursler [17] ; United Mine Workers of America v. Gibbs [18] . However, with the possible exception of Murphy J., no basis was found in the American experience for the decision reached by the majority in the Philip Morris Case and there is more than one reason why that should be so. If, as was done in the Philip Morris Case, emphasis is placed upon the word "matters" in determining the jurisdiction of the Federal Court, there is no correspondence with Art. III which, in defining the judicial power of the United States, speaks of "cases" and "controversies"; it does not use the word "matters". Moreover, Art. III is concerned with vesting, not with defining the extent of the power of the legislature to invest, jurisdiction. There are important differences in s. 77 of our Constitution, notably, the power given to Parliament to define the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States and the power to invest any court of a State with federal jurisdiction. Furthermore, the pendent jurisdiction of federal courts in the United States to hear non-federal matters is as much the product of the notion of implied incidental power as it is of the wording use in Art. III. A notion such as that can have no part to play in the arrangement which our Constitution creates where ss. 75 and 76 mark the limits of the jurisdiction which can be vested in federal courts. Although the vesting of judicial power in relation to the matters specified in ss. 75 and 76 will carry with its such implied powers as are inherent in the judicial power itself (power to punish for contempt, for example), it cannot extend the range of the jurisdiction which may be vested.

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Judgment (140 paragraphs)

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