Is Jurisdiction Conferred on the Court to Make Orders for Preliminary Discovery?
62 The applicants' second submission was that the Commonwealth Parliament had not conferred jurisdiction on the Federal Court to make orders for preliminary discovery under FCR, O 15A. The submission, as developed in oral argument by Mr Brereton, can be summarised as follows:
1. The Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament: Federal Court Act, s 19.
2. Section 86(1) of the TP Act confers jurisdiction on the Court in matters arising under that Act. However, s 86(1) is couched in restrictive language and confers jurisdiction only in a matter in respect of which a civil proceeding has been instituted under Part VI. Since neither Kirella nor Airservices had instituted a proceeding under Part VI, s 86 could not operate as a conferral of jurisdiction to make orders for preliminary discovery in relation to a matter arising under the TP Act. Section 163A of the TP Act, which confers additional jurisdiction on the Court to make declarations and certain other orders in relation to a matter arising under the TP Act, carries the position no further.
3. Section 39B(1A) of the Judiciary Act, which provides that the original jurisdiction of the Court extends to "any matter…arising under any laws made by Parliament", should not be read as extending the jurisdiction of the Court in matters under the TP Act. Section 86 of the TP Act is a specific, defined grant of jurisdiction, and to read s 39B(1A) of the Judiciary Act as enlarging that grant would be inconsistent with the intent of Parliament. A general enactment, such as s 39B(1A) of the Judiciary Act, should not be read as interfering with or detracting from a more specific and limited provision.
63 As was pointed out in oral argument, it follows from this submission (assuming it to be correct) that, although the Court does not have jurisdiction to order preliminary discovery in a matter arising under the TP Act, nonetheless it might have jurisdiction to order preliminary discovery in other cases. It might do so, for example, if the conferral of jurisdiction on the Court effected by a particular enactment is wide enough to embrace the making of an order for preliminary discovery: cf Patents Act 1990 (Cth), s 154(1); Copyright Act 1968 (Cth), s 131C. The applicants' argument on jurisdiction therefore does not result in O 15A being invalid, but it would prevent Kirella or Airservices successfully invoking O 15A.
64 Section 71 of the Constitution does not, of itself, confer jurisdiction on the Federal Court. The Court's jurisdiction must be conferred and defined by the exercise of the legislative power conferred on Parliament by s 77(i) of the Constitution. Moreover, subject to limited exceptions, the Federal Court Act does not confer jurisdiction on the Court: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 161. Section 19 of the Federal Court Act makes it clear that, generally speaking, the conferral of jurisdiction on the Court is to be achieved by other legislation. The principal exceptions are s 32 of the Federal Court Act, which confers jurisdiction in respect of matters associated with matters in respect of which the Court's jurisdiction is invoked, and s 24, which confers jurisdiction to hear and determine appeals. (See also s 31, dealing with the Court's power to punish contempt: cf Re Colina; Ex parte Torney [1999] HCA 57, at [16], per Gleeson CJ and Gummow J; at [43], [50], per McHugh J; and [113], per Hayne J.)
65 In PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863, Gaudron J identified (at 865), in general terms, three distinct sources of jurisdiction of the Federal Court, namely
(i) specific statutory provisions, of which ss 86 and 163A of the TP Act are examples;
(ii) the associated jurisdiction conferred by s 32 of the Federal Court Act; and
(iii) the cross-vesting legislation, such as the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
66 Since her Honour delivered judgment in PCS Operations v MUA, the cross-vesting legislation of the States, insofar as it purports to invest jurisdiction in the Federal Court in State matters, has been held to be invalid: Re Wakim. However, a further general source of jurisdiction for the Court (although not in non-federal matters) is s 39B(1A) of the Judiciary Act introduced in 1997. An Explanatory Memorandum accompanying the Law and Justice Legislation Amendment Bill 1997 (Cth) explained the purpose of s 39B(1A) (which also gives the Federal Court jurisdiction to hear matters in which the Commonwealth seeks an injunction or declaration, or those which arise under or involve the interpretation of the Constitution) as follows:
"118. The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts in civil matters. The jurisdiction gives the Federal Court a greater role in administration of federal laws, by ensuring that the Court is able to deal with all matters that are of an essentially federal nature.
119. This amendment is not intended to confer jurisdiction on the Federal Court that has been expressly proscribed by other federal legislation." (Emphasis added.)
67 The Explanatory Memorandum reinforces what the language of s 39B(1A)(c) in any event suggests, namely that the paragraph was intended to enable the Court to deal with all matters of an essentially federal nature except where jurisdiction has been "expressly proscribed". The exception obviously covers provisions such as s 485 of the Migration Act 1958 (Cth), which deprives the Federal Court of jurisdiction in respect of certain decisions other than that conferred by other specified sections. But is the operation of s 39B(1A) of the Judiciary Act to be qualified in matters arising under the TP Act because of the form of the conferral of jurisdiction effected by s 86(1) of the TP Act?
68 In answering this question it is of some importance that s 86(1) of the TP Act operates as a positive conferral of jurisdiction on the Court in matters arising under the TP Act. While it is framed by reference to proceedings instituted under Part VI of the TP Act, it contains neither an "express proscription" nor an implied proscription on the Court exercising additional jurisdiction in matters under the TP Act, should Parliament choose to confer such jurisdiction on the Court. That additional jurisdiction might be conferred on the Federal Court is shown by s 163A of the TP Act. (Section 163A in its initial form was inserted in the TP Act in 1976, at a time when s 86(1) conferred exclusive jurisdiction on the Federal Court to hear and determine actions, prosecutions and proceedings under Part VI. Section 86 was subsequently amended so as to confer concurrent jurisdiction on State and Territory courts in certain matters arising under Parts IVA, IVB and V of the TP Act: see now s 86(2).)
69 By enacting s 39B(1A)(c) of the Judiciary Act, Parliament plainly intended to confer a broad supplementary jurisdiction on the Court in matters arising under laws made by the Parliament. As the Explanatory Memorandum states, s 39B(1A) is not intended to apply where the effect would be to overturn an express proscription contained in the legislation conferring specific jurisdiction on the Court. No doubt there will also be cases where the legislation contains or should be interpreted as containing an implied proscription on the Court exercising jurisdiction of a particular kind. But s 86(1) of the TP Act is not legislation of this kind.
70 It is true that s 86(1) does not expressly advert to the possibility that a matter might arise under the TP Act otherwise than in the context of a proceeding instituted under Part VI. However, that failure, as the Solicitor-General for the Commonwealth suggested, is best described as a casus omissus, rather than an expression of a legislative policy that ancillary procedures such as preliminary discovery should not be available in the Federal Court in matters arising under the TP Act. It is difficult to think of any reason why Parliament would wish or intend to curtail the grant of general jurisdiction to the Court contained in s 39B(1A) so as to exclude jurisdiction to make orders in the nature of preliminary discovery in a matter arising under the TP Act.
71 Mr Brereton argued that, if s 39B(1A) of the Judiciary Act were not read down as the applicants suggested, the Federal Court might have jurisdiction, for example, in all matters arising under the Family Law Act 1975 (Cth). This, he contended, could not have been the intention of the drafter of s 39B(1A). This argument perhaps overlooks the fact that the Federal Court already has jurisdiction in relation to proceedings in the Family Court which are transferred to it pursuant to s 5(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth): see s 9(2). (The decision in Re Wakim does not appear to affect these provisions.) In any event, the interaction between s 39B(1A) and the jurisdictional provisions of the Family Law Act 1975 (Cth) (see ss 31, 32, 39, 69H) may raise considerations not present in this case. They are better left for an occasion on which they arise for decision.
72 Mr Brereton also relied on Thomson v Trade Practices Commission to support the contention that s 39B(1A) of the Judiciary Act cannot constitute a source of jurisdiction for the Federal Court to make orders for preliminary discovery. In Thomson, a majority of the High Court held that the Federal Court lacks jurisdiction in relation to a claim based on alleged contravention of s 45 of the TP Act to grant an injunction in circumstances other than those specified in the TP Act itself. The majority decided that the jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for orders of the kind specified in s 80 of the TP Act (at 163).
73 Thomson supports the applicants' case to the extent that it confirms that s 86(1) is not a self-contained grant of jurisdiction, but operates by reference to proceedings for which provision is made elsewhere in Part VI of the TP Act (at 162). However, Thomson does not address the question whether a grant of jurisdiction in the general terms of s 39B(1A) of the Judiciary Act should be read down in the manner suggested by the applicants. It therefore does not stand in the way of the conclusion that s 39B(1A) of the Judiciary Act confers jurisdiction on the Federal Court in matters arising under the TP Act additional to that conferred by s 86(1) of the TP Act.
74 As we followed Mr Brereton, he did not dispute that if s 39B(1A) of the Judiciary Act operates in the manner we have described, the jurisdiction so conferred is sufficient to enable the Court to make orders for preliminary discovery in accordance with O 15A. In any event, we consider that s 39B(1A) does have that operation. It confers jurisdiction "in any matter…arising under any laws made by the Parliament". The relevant matter in each case, as we have explained, is the claim by the applicant to be entitled to relief under the TP Act. An application for preliminary discovery under O 15A, like the comparable procedure in equity, is intimately connected with the judiciable controversy constituting the matter. This is because the application, if successful, enables the applicant either to identify the appropriate respondent against whom proceedings should be instituted, or to obtain documents relating to the question of whether the applicant has a right to obtain substantive relief and which assist in determining whether proceedings under the TP Act should be instituted.
75 It follows that the Court, in each of the proceedings at first instance, had jurisdiction to make the orders authorised by FCR, O 15A rr 3 and 6. Since s 39B(1A) of the Judiciary Act only came into force in April 1997, our reasoning does not address the question of whether the Court had jurisdiction prior to that date to make orders for preliminary discovery under O 15A: cf Arnhem Land Aboriginal Land Trust v Minister for Mines and Energy for the Northern Territory (1997) 78 FCR 556 (O'Loughlin J), at 564-565. It is, however, not necessary to consider that question in these proceedings.