Mirvac Homes (NSW) Pty Limited v Airservices Australia

the proper approach 4 Before giving consideration to the terms of the notice of objection to competency, it is appropriate to say something about the approach that the Court should take when its jurisdiction is challenged. It is clear that this Court has jurisdiction to determine that it has no jurisdiction in respect of a proceeding instituted in the Court and to dismiss the proceeding accordingly (Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [14]). 5 The provisions in the Federal Court Rules for the filing and service of a notice of objection to competency is intended to encourage a respondent to inform the applicant promptly that the jurisdiction of the Court is in issue (Coal & Allied Operations P/L v Industry Research & Development Board - unreported, Federal Court of Australia, Beaumont J, 16 November 1992). The filing of a notice of objection to competency also places the Court on notice that its jurisdiction to make the orders sought by the applicant in the proceeding is challenged. The Court must then decide, before it makes the orders sought by the applicant or any substantive orders, whether it has jurisdiction to proceed (The Queen v the Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1978) 143 CLR 190). However, whether, where the jurisdiction of the Court is challenged, the Court must defer taking any further step in the proceeding until it rules on the challenge remains, in my view, unclear. 6 In Bray v F Hoffman-La Roche [2003] FCAFC 153; 200 ALR 607 Finkelstein J at [239] expressed the view that, where an issue which is properly characterised as jurisdictional is raised, a judge is not entitled to put off his or her determination of that issue unless all steps in the proceeding are deferred pending the determination of the issue. His Honour said: '…until the court's jurisdiction has been established, the court cannot know whether it has the "right" to enter upon the inquiry. It is only when the right is established that the case can proceed.' However, the practice of the Court has not always accorded with the view expressed by Finkelstein J (see Khatri v Price [1999] FCA 1289 per Katz J at [14]). 7 I have not heard argument on whether I should in this case adopt the approach suggested by Finkelstein J to be the only appropriate approach. The parties put their respective submissions to me on the assumption that the relevant principles were those collected and summarised in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ('Reading v AMP'). Reading v AMP, which sought to identify and summarise the circumstances in which an order will be made under O 29 r 2 of the Federal Court Rules, was not a case in which the jurisdiction of the Court was challenged. 8 As is mentioned above, I do not consider that the respondent's notice of objection to competency is apt to raise the issue that, in my view, is determinative of the Court's jurisdiction to hear and determine the Application. Should the respondent pursue its challenge to the jurisdiction of the Court to hear and determine this proceeding, the parties will be given the opportunity to make submissions touching on the view expressed by Finkelstein J.

The applicant's case 9 It is not in dispute that an Australian Noise Exposure Forecast ('ANEF') is a single number index for predicting the cumulative exposure to aircraft noise during a specified period. ANEFs depict noise exposure contours which indicate land areas around aerodromes forecast to be exposed to aircraft noise of certain levels in the future. High levels of exposure to aircraft noise are incompatible with certain kinds of land use. 10 The second applicant is the registered proprietor of land in the vicinity of the Canberra International Airport ('the relevant land'). The first applicant is a party to a call option agreement with the second applicant in respect of the relevant land. The applicants claim to be aggrieved by a decision of the respondent to purport to endorse the Canberra 2050 ANEF. The applicants claim that the extent to which development consent may be obtained for the subdivision and development of the relevant land for residential purposes is dependent upon whether the Canberra 2050 ANEF has been validly endorsed by the respondent. 11 The applicants contend that the Canberra 2050 ANEF has not been prepared as required by Part 5 Division 3 of the Airports Act 1996 (Cth). The applicants further contend that the purported endorsement by the respondent of the Canberra 2050 ANEF was not authorised by the relevant Ministerial direction given to the respondent under s 16 of the Air Services Act. Additionally the applicants seek judicial review of the decision of the respondent to endorse the Canberra 2050 ANEF on a number of administrative law grounds.

jurisdiction under s 39B of the judiciary act 12 No party suggested that it would be appropriate to determine the objection of competency in two stages; that is, to determine it in respect of one of the heads of jurisdiction invoked (ie the ADJR Act) ahead of the hearing but not the other (ie s 39B of the Judiciary Act). For this reason it is convenient to give consideration first to the applicants' claim to be entitled to relief under the wider of the two heads of jurisdiction invoked, namely s 39B of the Judiciary Act. As I discussed in McGowan v Migration Agents Registration Authority [2003] FCA 482 at [24]-[35] the jurisdiction conferred on the Court by s 39B of the Judiciary Act includes jurisdiction to engage in judicial review although the exact ambit of that jurisdiction and the extent of the Court's powers thereunder is not entirely clear. 13 The provision of s 39B of the Judiciary Act upon which the applicants place principal reliance is s 39B(1A)(c) which relevantly provides: 'The original jurisdiction of the Federal Court of Australia … includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.' The relief which the applicants claim in reliance on s 39B(1A)(c) is declaratory in nature. 14 The powers of this Court to make declarations arises from s 21 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Section 21 provides: '(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought.' 15 As Cooper J has recently pointed out in Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 at [14]: 'There need not be a cause of action before the power may be exercised, provided the subject matter in respect of which the declaration is sought is within the jurisdiction of the Court and there is a real controversy to be determined ….' (citations omitted) 16 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 Mason CJ, Dawson, Toohey and Gaudron JJ observed: 'It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[I]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." Forster v. Jododex Aust. Pty. Ltd. (1972), 127 C.L.R. 421, at p. 437, per Gibbs J. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. See In re Judiciary and Navigation Acts (1921), 29 C.L.R. 257. The person seeking relief must have "a real interest" (Forster (1972), 127 C.L.R., at p. 437, per Gibbs J.; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd., [1921] 2 A.C. 438, at p. 448, per Lord Dunedin) and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" (University of New South Wales v. Moorhouse (1975), 133 C.L.R. 1, at p. 10, per Gibbs J.) or if "the Court's declaration will produce no foreseeable consequences for the parties" (Gardner v. Dairy Industry Authority (N.S.W.) (1977), 52 A.L.J.R. 180, at p. 188, per Mason J.; see also p. 189, per Aickin J.; 18 A.L.R. 55, at pp. 69, 71 respectively.)' 17 Section 39B(1A)(c) has been recognised as conferring a 'broad supplementary jurisdiction on the Court in matters arising under laws made by the Parliament' (Hooper v Kirella Pty Ltd (FC) [1999] FCA 1584; 96 FCR 1 at [69]). Nonetheless, as I said in McGowan v Migration Agents Registration Authority at [32]: '… it is necessary for the party who seeks to invoke the jurisdiction [under s 39B(1A)(c)] to be able to identify a right, duty or defence which owes its existence to the law made by the Parliament upon which he or she relies or which relies on that law for its enforcement (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 per Latham CJ; Felton v Mulligan (1971) 124 CLR 367 at 388 per Windeyer J; Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; 101 FCR 1).'

the notice of objection to competency 18 I turn to consider the terms of respondent's notice of objection to competency. Those terms make it clear that the objection is concerned solely with the Court's jurisdiction. The first two grounds of challenge to the Court's jurisdiction are worded in a way that renders them apt only to challenge the Court's jurisdiction under the ADJR Act. In considering the applicants' claim to be entitled to relief under s 39B of the Judiciary Act it is therefore necessary only to give consideration to grounds 3 and 4 of the notice of objection to competency. 19 It is convenient to give consideration to ground 4 ahead of ground 3. Ground 4 is concerned with alleged delay in the commencement by the applicants of this proceeding. It asserts that the proceeding was not instituted within a reasonable time after the decision of the respondent to endorse the Canberra 2050 ANEF. At least so far as the Court's jurisdiction under s 39B of the Judiciary Act to grant declaratory relief is concerned, ground 4 does not raise an issue going to the Court's jurisdiction. It raises a matter which might be relevant were the Court otherwise satisfied that a case for the grant of declaratory relief had been made out. Unreasonable delay in instituting the proceeding would constitute a ground on which the Court's discretion to grant declaratory relief could be exercised unfavourably to the applicant.

20 I turn to ground 3 of the notice of objection to competency. Ground 3 is concerned with the applicants 'standing' to claim the relief sought by the application. The use of the term 'standing' in the context of the jurisdiction vested in the Court by s 39B is, in my view, liable to distract attention from the critical question. Section 39B(1A) vests jurisdiction in the Court in 'any matter' which falls within paragraphs (a), (b) and (c) of the subsection. As Gleeson CJ and McHugh J observed in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; 200 CLR 591 ('Truth About Motorways') at [14]:

'The word "any" does not lend itself to a restrictive interpretation.'

If this proceeding concerns a 'matter' which falls within s 39B(1A)(c) the Court necessarily has jurisdiction to hear and determine the 'matter'.

21 The word 'matter' carries the same meaning in s 39B of the Judiciary Act as it carries in Ch III of the Constitution. In Truth About Motorways Gaudron J, after noting at [43] 'that the constitutional meaning of "matter" involves the existence of a controversy as to "some immediate right, duty or liability to be established by the determination of the Court"' observed at [45]-[49]: '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 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: "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: "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 authorize [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 Commonwealth, "[i]f there is no legal remedy for a 'wrong', there can be no 'matter'."' 22 In the same case at [122] Gummow J observed: 'The notion of "standing" is an implicit or explicit element in the term "matter" throughout Ch III, identifying the sufficiency of the connection between the moving party and the subject-matter of the litigation.'

See also Gleeson CJ and McHugh J at [16]-[17], Kirby J at [127] and Hayne J at [183]-[185].

23 Truth About Motorways makes clear, in my view, that the critical issue so far as the Court's jurisdiction to hear and determine the Application is concerned is whether it seeks the determination of a 'matter' in the constitutional sense. 24 The questions raised by the respondent's notice of objection to competency are not formulated in a way that conveniently raises the issue of whether the subject matter of this proceeding is a 'matter' in the relevant sense. Answers favourable to the respondent to the questions implicit in grounds 1 and 2 of the notice would not by themselves compel a finding that the Court lacks jurisdiction to hear and determine the applicants' claims for relief. The claims for relief might still be able to be heard and determined in the exercise of the jurisdiction vested in the Court by s 39B of the Judiciary Act. 25 Similarly, an answer favourable to the respondent to the question implicit in ground 4 would not compel a finding that the Court lacks jurisdiction to hear and determine the applicants' claims for relief. It would simply suggest that, in the exercise of its jurisdiction under s 39B of the Judiciary Act, the Court's discretion to grant declaratory relief might be exercised unfavourably to the applicants. 26 Ground 3, which concentrates on the question of standing, is the ground which most nearly raises the critical issue of whether the Application seeks the determination of a 'matter' in the relevant sense. However, no doubt because of the way in which ground 3 is worded, the parties did not address submissions to the Court on that issue. If the applicants are 'persons aggrieved' by an administrative decision made by the respondent 'under an enactment' within the meaning of the ADJR Act, the proceedings will necessarily involve a 'matter' in the relevant sense. However, even if the jurisdiction of the Court under the ADJR Act has not been properly invoked, the Court will have jurisdiction to hear and determine the Application if the applicants have properly invoked a jurisdiction vested in the Court by s 39B(1A) of the Judiciary Act.

conclusion 27 Further consideration of the respondent's notice of objection to competency will be stood over to allow the respondent to give consideration to whether, in the light of these reasons for decision, it continues to challenge the jurisdiction of the Court to hear and determine the Application. If the respondent does continue to challenge the Court's jurisdiction it will need to give consideration to filing a fresh notice of objection to competency or, alternatively, seeking leave to amend the present notice. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Respondent: A I Tonking with E C Muston

Solicitor for the Respondent: Minter Ellison Lawyers