Order 4 - the order prohibiting proceedings in the Federal Circuit Court
137 Finally, it is necessary to address order 4 sought at [71] above. In order 4, the State seeks an order that Mr Mathews be prohibited from instituting any proceedings against the State, not in this Court, but in the Federal Circuit Court.
138 In applying for order 4 at [71] above, the State has relied upon s 32(1) of the Federal Court Act. It provides:
Associated matters - civil proceedings
(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 (the core matters) in which the jurisdiction of the Court is invoked.
139 The State has done this because it contends the orders permitted by s 37AO(2)(a) and (b) of the Federal Court Act are both directed to proceedings "in the Court", and s 4 of the Federal Court Act defines the word "Court" to mean the Federal Court of Australia. It follows, so the State contends, that this Court does not have the jurisdiction under s 37AO of the Federal Court Act to make an order prohibiting Mr Mathews from instituting proceedings in the Federal Circuit Court.
140 However, the State points out that Part 6B of the Federal Circuit Court Act is in materially the same terms as Part VAAA of the Federal Court Act. In particular, s 88Q(2) of the Federal Circuit Court Act relevantly states:
(2) The Federal Circuit Court of Australia may make any or all of the following orders:
…
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
...
141 To make good its reliance on s 32 of the Federal Court Act, the State pointed to decisions such as Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (Philip Morris) and Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 (Johnson Tiles), where it was held that, where jurisdiction is conferred on a federal court in respect of a matter, that conferral carries with it the authority for the Court to determine all claims, federal and non-federal, which are involved in the one controversy. Consequently, the State submitted that:
Claims for orders under the respective statutes [the Federal Court Act and the Federal Circuit Court Act] are facets of the same matter and involve a single justiciable controversy - that is whether Mr Mathews "has frequently instituted or conducted vexation (sic) proceedings in Australian courts or tribunals" …
142 As I will endeavour to explain below, I consider this submission is problematic in two important respects. First, it fails to distinguish between the Court's accrued jurisdiction and its associated jurisdiction under s 32 of the Federal Court Act. And, secondly, it fails to appreciate that the critical question raised by the State's application under s 37AO is the Court's power to make order 4 sought at [71] above.
143 As to the first aspect, the distinction between this Court's accrued and associated jurisdictions has been highlighted on a number of occasions by Allsop J (as his Honour then was). For example in Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; [2005] FCA 1528 (Macteldir), his Honour set out (at [66]) a part of the Full Court decision concerned, which was to the effect that s 32 may:
….extend the scope of the Court's jurisdiction. However, this may only occur if both the original claim and the claim argued to fall within s 32 are part of one "matter"; the test being whether both claims arise out of the same substratum of fact …
144 At [67], his Honour pointedly disagreed with this description of the effect of s 32, saying:
... The only High Court authority is to the effect (conformably with the words of s 32) that s 32 of the FCA Act deals with separate and distinct matters. It is not what is sometimes called "accrued" jurisdiction. This latter expression may be better expressed as the limit of the matter or controversy. Associated jurisdiction under s 32 is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been, conferred. The word "associated" is not a synonym for "accrued".
145 Immediately after this observation, his Honour identified the High Court authority to which he was referring, as follows (at [67]):
In Philip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457, Barwick CJ at 476 indicated that "associated" embraced matters which may be disparate from each other, that is, not within the "accrued" jurisdiction of the already conferred federal matter. Gaudron J in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520, 521 was of the view that Barwick CJ's views were implicit in the other judgments in that case. (See Philip Morris at 494-95, 518, 521-22.)
146 Similar views have been expressed by his Honour in Alstom Power Ltd v Polar Circle AS [2004] FCA 607 at [10] and Elbe Shipping SA v The Ship "Global Peace" (2006) 154 FCR 439; [2006] FCA 954 at [60], albeit that the latter decision dealt with s 12 of the Admiralty Act 1988 (Cth), which contains a similar provision to s 32. His Honour has also written about the topic extra judicially in an article entitled "Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002" published at (2002) 23 Australian Bar Review 29 (see pp 47-48).
147 On the scope of the Court's associated jurisdiction, in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520; [1998] HCA 29 (at [12]) (the second High Court case mentioned at [67] of Macteldir above), Gaudron J held that s 32(1) was not confined to extending the Court's jurisdiction to matters arising under federal laws. Nonetheless, while the limits of the associated jurisdiction may remain an open question, it is beyond doubt that, where s 32 applies, it at least extends to give the Court jurisdiction to determine matters arising under other federal laws made by the Parliament: see Turner v Owen (1990) 26 FCR 366 at 375-377 per Pincus J adopting the view of Gibbs J in Philip Morris at 494.
148 Two examples of the use of s 32 to extend the Court's jurisdiction to matters arising under another federal law appear in the judgments in Le v The Queen (2007) 74 IPR 1; [2007] FCA 1463 and Ly v The Queen (2014) 227 FCR 304; [2014] FCAFC 175, where a single judge and a Full Court of this Court (respectively) held that, when considering an appeal under the Copyright Act 1968 (Cth), this Court could determine a related appeal under the Trade Marks Act 1995 (Cth) using the associated jurisdiction in s 32 of the Federal Court Act.
149 However, the reach of this Court's associated jurisdiction under s 32 of the Federal Court Act is, in my opinion, immaterial in this application. This brings me to the second of the two problematic aspects of the State's submission above. That is, its failure to distinguish between this Court's powers to act and its jurisdiction to decide matters. This is an important distinction in this application because, in my view, the answer to the question whether this Court can make an order in terms of order 4 above involves a consideration of the extent of the Court's powers to act, not the existence of its jurisdiction.
150 The Court's jurisdiction is its authority to decide the matters litigated before it: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (Jackson) at 627 per Toohey J; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 561 per Toohey J; Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [24]-[25] per Gleeson CJ and McHugh J; IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231; [2004] FCA 1390 at [43] per French J; Australian Securities and Investments Commission v Axis International Management Pty Ltd (2009) 178 FCR 485; [2009] FCA 852 at [9] per Gilmour J; and Cement Australia at [15]-[16] per Greenwood J.
151 On the other hand, the Court's powers are the methods by which it exercises its jurisdiction to decide the matters before it: see Jackson at 630-631 per Toohey J and Cement Australia at [19] per Greenwood J. So, apart from the power under s 21 of the Federal Court Act to make declaratory orders, mentioned above, and the power the subject of this application to make a vexatious proceedings order under s 37AO, the Court is also given a raft of other powers, including those under s 22 relating to finality and avoiding multiplicity, the power in s 37AO(2)(c) which allows the Court to make "any other order [it] considers appropriate in relation to the person", and the requirements of s 37M(3) that any power must be exercised in the way that best promotes the overarching purpose of civil proceedings. Moreover, they include the general power under s 23: "in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate". This power has been described as a wide power: see Jackson at 622 per Deane J; SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581, [2004] FCA 1500 (SZDCJ) at [27] per Jacobson J; and Ho v Grigor (2006) 151 FCR 236; [2006] FCAFC 72 at [54] per French, Stone and Besanko JJ.
152 In Jackson, Toohey J expressed the scope and extent of these general powers under s 23 in the following terms (at 632):
More generally, the section gives to the Federal Court 'the powers necessary for it to do justice in exercising the judicial power of the Commonwealth in matters over which it has jurisdiction'.
(Footnotes omitted)
153 Gaudron J described the operation of the provision as follows (at 642):
Section 23 does not authorize the granting of relief other than relief entitled in respect of a claim brought forward. However, subject to these considerations, the Court has power to make such orders as the Court thinks appropriate "in relation to matters in which it has jurisdiction". So long as the orders made in restraint of dealing with assets are confined within these bounds, the Federal Court is possessed of power in relation to matters in which it has jurisdiction to make such orders if the Court thinks it appropriate.
See also Wilson and Dawson JJ at 619 and Brennan J at 620-621.
154 In addition to these express general powers, the Court has an implied power "no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction": see Jackson at 619 per Wilson and Dawson JJ. In this respect, Brennan J adopted the following comments of Bowen CJ in his judgment in the matter before the Full Court (see Jackson at 623-624):
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words "inherent jurisdiction". Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.
155 For his part, Toohey J thought the "notion of inherent jurisdiction" was capable of misleading because it most often involved a question of power rather than jurisdiction. In this regard, his Honour adopted the following comments from the decision of the Full Court of the Federal Court in Parsons v Martin (1984) 5 FCR 235 at 241 (see Jackson at 630-631):
In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.
In view of the way in which the phrase "inherent jurisdiction" is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.
(Emphasis added)
156 Finally, in SZDCJ, Jacobson J (at [28]) adopted the following observations of Diplock LJ in Hunter v Chief Constable of the West Midlands Police [1928] AC 529 at 536, highlighting a court's power to prevent an abuse of its processes:
The inherent power which any Court of Justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
157 Importantly for the question currently under consideration, the implied incidental powers described above have been held to allow a court to make orders to protect against the "unconscientious exercise of legal rights" and it mattered not where the proceedings were brought. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR) at 392, the High Court (per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), speaking about anti-suit injunctions, observed that:
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.
(Footnotes omitted)
158 Since the order under consideration here has some similarities to an anti-suit injunction, albeit that there is no definite litigation threatened in this case, it is instructive to consider what the High Court said earlier in CSR about the common foundations for that relief and the court's power to prevent the abuse of its processes (at 391):
The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered … or a petition in bankruptcy has been presented … or winding up proceedings have been commenced … an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets".
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes.
159 And, finally, it should be noted that s 37AN of the Federal Court Act makes it clear that none of these powers is affected by the introduction of the vexatious proceedings provisions in Pt VAAA of the Federal Court Act.
160 Mr Mathews duly exercised this Court's jurisdiction when he filed his originating application seeking relief under the provisions of the AHRC Act. He exercised it again when he filed his originating application seeking a writ of certiorari under the provisions of the Judiciary Act. The Court's jurisdiction to determine the first application is contained in Div 2 of Part IIB of the AHRC Act, together with s 39B(1A)(c) of the Judiciary Act. Noting what I have said above (see at [52]) about a writ of certiorari being a form of relief which is ancillary to a writ of prohibition, its jurisdiction to determine the second application is contained in s 39B(1) of the Judiciary Act. Section 39B of the Judiciary Act is mentioned in each instance because it is the lynchpin of the Court's jurisdiction, in the sense that it defines the matters in ss 75 and 76 of the Constitution in relation to which this Court has jurisdiction. This is reinforced by s 19 of the Federal Court Act.
161 While the proceeding relating to the first application is no longer extant, it having been transferred to the Federal Circuit Court and dismissed by Judge Jarrett's orders of 23 June 2014, the second proceeding remains on foot in this Court. The fact that I have now decided that this proceeding has no reasonable prospect of success and should therefore be dismissed does not remove the jurisdiction of this Court to deal with any other matters that have arisen during the course of it: see Johnson Tiles at [85] per French J and Beck v Spalla (2005) 142 FCR 555; [2005] FCAFC 82 at [25] per Hill, Finn and Kenny JJ.
162 Once the jurisdiction of this Court was exercised by Mr Mathews, it had at its disposal the wide range of powers to exercise its jurisdiction which are described in some detail above. Of particular importance to this aspect of this application, that includes the powers to prevent the abuse of its processes and the implied incidental power to prevent the unconscientious exercise of legal rights, whether that is occurring in this Court or elsewhere, provided that there is a sufficient connection with the matter in this Court to allow it to exercise that power in the interests of the administration of justice. In the circumstances of this application, I consider these powers are sufficient to allow me to make an order in the form of order 4 at [71] above. The circumstances I have in mind are set out in the paragraph below.
163 First, all of the 13 federal court proceedings that I have found meet the definition of vexatious proceedings in s 37AO and s 37AM were connected with the proceeding that Mr Mathews commenced in this Court under the AHRC Act. In this, I include the two applications that were made in that proceeding after it was transferred to the Federal Circuit Court. Further, the current proceeding is also connected with the AHRC proceeding because it seeks to challenge Judge Jarrett's dismissal of it. Secondly, the State was, and is, a party to all those proceedings. Thirdly, the present matter of concern common to all those proceedings is Mr Mathews' abuse of the processes of this Court and others, the details of which are outlined above. This includes the two applications that he made in the Federal Circuit Court in the proceeding that this Court transferred to that Court. Finally, and most importantly, based upon Mr Mathews' litigious history as outlined above, and given that order 3 above will prevent him instituting proceedings in this Court, unless he is constrained by an order in the form of order 4, I consider it is likely that he will shift his attention to the Federal Circuit Court, which has the same jurisdiction as this Court in many areas, and continue his abuse of process in that Court.
164 I therefore consider that this Court should act to prevent these likely future abuses of the processes of the Federal Circuit Court. I would add that, in the circumstances, this power may well extend to prevent such abuse in courts outside the federal court system, but in this instance, I have not been asked to make such an order.