CONSIDERATION
27 Section 77of the CommonwealthConstitution authorises the making of laws defining the jurisdiction of this Court with respect to the matters mentioned in ss 75 and 76. Section 76(ii) provides for jurisdiction in matters "arising under any laws made by the Parliament". Paragraph (c) of s 39B(1A) of the Judiciary Act is an exercise of the power conferred by s 77, conferring jurisdiction on this Court "in any matter … 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 exceptions are inapplicable here.
28 I accept that, as the applicants would have it, by virtue of s 39B(1A)(c) of the Judiciary Act, the Court has jurisdiction to entertain the substantive claims that the applicants want to raise. As a consequence, for the reasons stated below, the Court has jurisdiction to hear and determine the applicants' current application, upon the basis that the determination of the issues raised by it are ancillary or incidental to the exercise of judicial power in relation to the matter: cf Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 200 ('Airservices') at 208 [25] per Finn J.
29 In order to make good these conclusions, it is first necessary to consider what is meant by the term 'matter' in the relevant constitutional provisions (see above) and therefore in s 39B(1A) of the Judiciary Act. As stated in Von Arnim v Group 4 Correctional Services Pty Ltd (2002) 117 FCR 346 at 352 [22]:
The word 'matter' in s 39B(1A)(c) has the same meaning as it possesses in s 76 of the Constitution of the Commonwealth: see Transport Workers' Union v Lee (1998) 84 FCR 60 at 66 per Black CJ, Ryan and Goldberg JJ. The 'matter' is "the subject matter for determination in a legal proceeding", "a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy": see Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266; Fencott v Muller (1983) 152 CLR 570 at 591 per Gibbs CJ and at 603 per Mason, Murphy, Brennan and Deane JJ; Croome v Tasmania (1997) 191 CLR 119 at 125 per Brennan CJ, Dawson and Toohey JJ. A matter is ordinarily concerned with "some immediate right, duty or liability to be established by the determination of the Court": see Re Judiciary and Navigation Acts at 265 and Abebe v Commonwealth (1999) 197 CLR 510 at 524 per Gleeson CJ and McHugh J and at 570 per Gummow and Hayne JJ.
30 The gist of the applicants' substantive claims, as set out in their proposed pleading, is that the respondents violated rights and/or privileges conferred on them by the Civil Aviation Act, regulations under that Act, and/or the Civil Aviation Orders (as defined in s 3 of that Act) by virtue of events occurring between May 2004 and late September 2006. The claims evidently form part of a single controversy between the applicants and the respondents relating to the respondents' conduct during this period (whether individually or as CASA's agents).
31 By this pleading, the applicants would advance five key propositions, namely:
1. Polar was entitled to retain its Air Operator's Certificate subject only to cancellation or suspension in accordance with s 28BC(2A) of the Civil Aviation Act; and CASA and/or the other respondents cancelled Polar's Air Operator's Certificate otherwise than in accordance with that provision.
2. Polar was entitled to renewal of its Air Operator's Certificate provided Polar satisfied s 28(1) of the Civil Aviation Act; and CASA failed to renew Polar's Air Operator's Certificate notwithstanding that Polar satisfied s 28(1) - as acknowledged by the second respondent, Mr Farquharson.
3. Under the Civil Aviation Act, Mr Butson was entitled to retain his approval as Chief Pilot subject only to cancellation or suspension in accordance with: (a) s 30DI of the Judiciary Act; (b) regulation 269 of the Civil Aviation Regulations 1988 (Cth) ('the Regulations'); and/or (c) clause 6 of Appendix 1 to Civil Aviation Order 82.0; and CASA and/or the other respondents cancelled his approval otherwise than in accordance with these provisions.
4. The approval of Mr Butson as a Chief Flying Instructor was a right or privilege granted to him under the Civil Aviation Act, which could be terminated only in accordance with: (a) s 30DI of the Judiciary Act; and/or (b) regulation 269 or regulation 5.58(5) of the Regulations; and CASA and/or other respondents terminated that right or privilege otherwise than in accordance with these provisions.
5. Generally, CASA owed to the applicants duties "arising out of the terms and ambit" of the Civil Aviation Act; and the CASA had breached these duties: see par [15(b)] of the Proposed Statement of Claim.
32 CASA owes its existence to s 8 of the Civil Aviation Act, and has the functions delineated in s 9 of that Act. Essentially, a proceeding in which the applicants' substantive claims were advanced would be one in which the applicants sought to vindicate the statutory rights and privileges they claim were conferred on them by federal law, CASA's violation of which entitles them to an award of damages. Thus, the 'matter' would include those rights and privileges that, under the Civil Aviation Act, Polar claims against CASA through holding an Air Operator's Certificate and Mr Butson claims through being approved as Chief Pilot and/or Chief Flying Instructor. The matter would also include the duties that, under the Civil Aviation Act, the applicants claim that CASA has breached. The nature of these claimed statutory rights and privileges and/or duties, including whether breach of these rights and privileges and/or duties justifies an award of damages, would fall to be determined under and by reference to the Civil Aviation Act (as well as the Regulations and Orders). Such a proceeding would thus give rise to the question whether the applicants have an entitlement to damages against the CASA "arising under" the Civil Aviation Act.
33 Put another way, the source of any entitlement as against CASA to damages for claimed violation of statutory rights, privileges, or duties owed by CASA to the applicants is the Civil Aviation Act (and the Regulations and Orders made under it). This gives rise to a federal 'matter' for the purposes of s 39B(1A)(c) of the Judiciary Act, as indicated by the authorities: see, for example, 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 373-4 per Barwick CJ, 382 per Menzies J, 403 per Walsh J and 416 per Gibbs J; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 95 per Toohey J and 136 per Gummow J; and Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 at 141 [9] per Gleeson CJ, Gummow and Hayne JJ.
34 The Court would also have jurisdiction to entertain the non-federal claims contemplated by the proposed pleading, such as the negligence and misfeasance in public office claims. When the proposed pleading is examined, it appears that the common law claims form part of the one matter and fall within the accrued federal jurisdiction of the Court.
35 That is to say, where the Court has jurisdiction over a matter (as it would over the federal claims here), then the Court has jurisdiction to consider the whole of the controversy, including any non-federal claims forming part of the matter: see Petrotimor at 509 [3] per Black CJ and Hill J, citing Philip Morris and Fencott v Muller (1983) 152 CLR 570 ('Fencott v Muller'). This 'accrued' jurisdiction (as it is generally called today) is governed by well-established principles: see, e.g., Philip Morris at 474-5 per Barwick CJ; Fencott v Muller at 607-8; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294 per Mason, Brennan Deane JJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 585-6 per Gummow and Hayne JJ; Abebe v Commonwealth (1999) 197 CLR 510 ('Abebe') at 530 per Gleeson CJ and Hayne J; and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 585-6 per Gleeson CJ, Gaudron and Gummow JJ. Broadly speaking, a non-federal claim will fall within the accrued federal jurisdiction if the claim arises out of common transactions and facts, although they may not entirely coincide: see Fencott v Muller at607-8. In their joint judgment in that case, Mason, Murphy, Brennan and Deane JJ went on to say (at 608):
What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
In short, this Court will have jurisdiction to hear and determine a non-federal claim, if it shares a 'common substratum of facts' with a federal claim, or if the claims are related in the sense that the determination of one is essential for the determination of the other. The non-federal claims foreshadowed in the proposed pleading apparently satisfy this test.
36 Whilst, for reasons to be explored shortly, McKerracher J's decision in Repacholi proceeds on a different basis from the decision in this case, I note that his Honour was prepared to accept that at least some of the claims advanced in that case could attract the jurisdiction conferred by s 39B(1A)(c) of the Judiciary Act, though the issue was not much argued: see Repacholi at 117 [112]-118 [116].
37 Analysis of the pleading does not support the respondents' submission that the pleading raise claims under the common law and not federal law. Further, there is little in this analysis to justify a finding that the applicants' claim is 'colourable' as that word was used in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. That is, there is nothing to suggest that the federal claims in this case have been made for the improper purpose of fabricating jurisdiction. The federal claims may prove untenable or otherwise fail, but that will not deprive the Court of jurisdiction to deal with the non-federal claims: see Johnson Tiles at 597-8 [85]-[86] and the authorities there cited; and Petrotimor at 509 [6].
38 The latter proposition is important in view of McKerracher J's decision in Repacholi, in which the pleaded case against CASA resembled the case that the applicants also wish to make: see Repacholi at 107 [51]-115 [107]. In an application for summary judgment, his Honour held that a claim for damages for breach of statutory duty against CASA was untenable because there were "no indicia in the statutory regime that such a claim should lie": see Repacholi at 128 [162]. His Honour also held that a misfeasance in public office claim was not maintainable, there being no disclosed basis for the claim, although his Honour noted that if discovery were given, the position "may theoretically change": Repacholi at 130 [167]. His Honour declined to strike out the negligence plea.
39 It must be borne in mind that Repacholi and this case, though arising out of similar facts, raise different issues, first, because the motions before the Court were different and, secondly, Repacholi unlike this case was transferred to this Court from the State Supreme Court, where it had begun. There is no application for summary judgment before the Court in this case, and nor could there be. Instead, the respondents have made a direct challenge to the Court's jurisdiction to deal with the applicants' current application. Repacholi does, however, indicate considerations that that the applicants may wish to take into account before formally delivering a pleading.
40 The critical question raised by the respondents' motion is whether the applicants have enlivened federal jurisdiction. If not, then there can be no federal jurisdiction (whether original, accrued, or associated) to support the applicants' current application: see Johnson Tiles at 598; Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553; and Petrotimor at 509 [4]-[5] and 512 [23]. In Petrotimor the controversy that was said to constitute the federal matter was held to be non-justiciable, so that there was no federal matter at all and thus no accrued federal jurisdiction.
41 In this case, the applicants have not yet served a statement of claim in the form of the proposed pleading in accordance with the Rules. Nor have they filed any application for substantive relief. It follows, so the respondents say, that there are no federal claims that can form a controversy constituting a 'federal' matter within s 39A(1A)(c) of the Judiciary Act. According to the respondents, there is therefore nothing to support the Court's entertaining non-federal claims in the accrued jurisdiction, and therefore nothing to support consideration of the issues raised by the applicants' application, which require the interpretation of State legislation. Further, according to the respondents, since there is no federal matter within jurisdiction, there can be no associated jurisdiction and, therefore, no other basis upon which the Court might deal with the applicants' application. For the reasons I am about to give, I would reject the respondents' submissions.
42 The respondents' argument depends on the proposition that there can be no controversy constituting a 'federal' matter when there is no federal claim being made in a proceeding; alternatively, as counsel put it:
"it has to be a matter to be determined by the court and … it's only to be determined by the court if the matter is actually before the court …."
43 These propositions are not borne out by the authorities. A 'matter' (which has the same meaning in s 39B(1A) of the Judiciary Act as in ss 75-77 of the Constitution) is constituted by a justiciable controversy between the parties: see Fencott v Muller at 608. In this context, a controversy may exist independently of the proceeding brought for resolving it. Thus, the joint judgment in Fencott v Muller at 603 stated that:
The concept of 'matter' as a justiciable controversy, identifiable independently of the proceedings which are brought for its determinationand encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris. (Emphasis added)
See Philip Morris at 475, 512. See also Crouch v Commissioner for Railways (1985) 159 CLR 22 at 37; Croome v Tasmania (1997) 191 CLR 119 at 125; and Abebe at 523-4 [24]. Indeed, the meaning of the word 'matter' has always been said to be broad. In South Australia v Victoria (1911) 12 CLR 667 at 675, Griffith CJ stated that "[t]he word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice" (emphasis added). As the Full Court accepted in Hooper v Kirella Pty Ltd (1999) 96 FCR 1 ('Hooper v Kirella'), this statement recognized that a relevant controversy and therefore a 'matter' may exist independently of a claim actually before a court.
44 Hooper v Kirella held (amongst other things) that s 39B(1A)(c) of the Judiciary Act validly conferred jurisdiction on the Court to entertain applications for preliminary discovery under O 15A of the Rules in matters arising under the Trade Practices Act 1974 (Cth): 20 [73]-[75]. In so holding, the Full Court dismissed appeals against the judgments of Tamberlin J in Kirella Pty Ltd v Hooper (1999) 92 FCR 90 ('Kirella v Hooper') and Finn J in Airservices 92 FCR 200. Critical to the Full Court's judgment was acceptance of the proposition that a federal 'matter' can exist even though a proceeding claiming substantive rights has not been instituted in the court (and there is thus no claim actually before the court).
45 To appreciate Kirella v Hooper it is first necessary to say something about the identity and information discovery procedure in O 15A. An order made under O 15A r 3 is made to enable a would-be litigant to identify the person or persons against whom the litigant considers he or she has a claim or claims. An order made under O 15A r 6 is designed to enable the would-be litigant to obtain information to enable the litigant to make a decision as to whether to commence a proceeding, where (amongst other things) there is reasonable cause to believe that the litigant may have a right to obtain relief from a person whose description has been ascertained.
46 Secondly, it is helpful to refer to the reasons for the judgments of Tamberlin J in Kirella v Hooper and Finn J in Airservices, because the Full Court substantially agreed with them and both stated their reasons with particular clarity. Both rejected the proposition that, at the stage at which preliminary discovery was sought, there was no 'matter' in existence within the meaning of ss 76 and 77 of the Constitution and thus nothing to support any statutory conferral of jurisdiction. Tamberlin J said (at 96-97 [29]):
The present orders are sought to enable the court to exercise its jurisdiction in the administration of justice concerning an existing right under the [Trade Practices Act]. The claim arises under that Act because the right to the remedy is conferred by it …. It is true that one fact, namely the identity of the appropriate respondent or respondents, is not known with certainty, and therefore legal proceedings making the substantive claim for relief have not yet been initiated …. Nevertheless, in my view, within the principles expressed in the Re Judiciary and Navigation Acts [(1921) 29 CLR 257 at 265], there is a 'matter' presently in existence, namely the accrued and fully constituted right to claim relief under the [Trade Practices Act]. The mechanism of preliminary discovery enables the court to determine and enforce that claim of right in exercise of its jurisdiction with respect to it.
47 In Airservices, Finn J explained (at 208 [24]):
The events giving rise to the prospective claim have occurred and they provide reasonable cause to believe that [Airservices] has or may have a right to obtain relief against Transfield under the [Trade Practices] Act. This Court clearly has jurisdiction to determine whether those events actually have given rise to a right in [Airservices], a liability in Transfield, under the [Trade Practices] Act these being questions arising under a law made by the Commonwealth Parliament: Constitution, s 76(ii). A claim properly initiated with that object in mind would be one seeking the establishment of an actual right and liability by the court and not merely an advisory opinion: cf Re Judiciary and Navigation Acts; it would relate to an apprehended wrong for which the law provides a remedy: cf Abebe v Commonwealth [(1999) 197 CLR 510 at 526-528]; it would not involve merely a hypothetical question: cf Bass v Permanent Trustee Co Ltd [(1999) 198 CLR 334 at 359 [56] ff]. I would add that the court's jurisdiction in relation to that matter would not depend upon the applicant actually being successful in establishing its right - or for that matter in commencing a proceeding that disclosed a reasonable cause of action: cf O 20, r 2 of the Federal Court Rules. (Emphasis added.)
Concluding that Airservices' complaint had the capacity to constitute a matter, Finn J perceived the "real question" as "not whether there is a matter, but how the jurisdiction in respect of that matter can properly be enlivened". At 208 [25]-[26], his Honour said:
That involves a question of judicial power. In this particular setting the answer to that question depends upon whether preliminary discovery of the type envisaged by O 15A, r 6 is an incident of the exercise of judicial power in relation to the matter …. In my view it clearly is.
Ordinarily a court's jurisdiction is enlivened by initiating process seeking a determination of the substantive claim one party alleges it has against another. But … such need not necessarily be the case. Necessity may require otherwise if a person's right is to be vindicated in a substantive claim. Preliminary discovery of the types provided in O 15A, rr 3 and 6 have long been accepted as a proper and appropriate precursor to the making of a substantive claim - and appropriate because it assists in the administration of justice in relation to the making of the claim itself. There is no reason for present purposes to distinguish between the two types of discovery. Each reflects a different necessity. (Emphasis added.)
48 The Full Court (Wilcox, Sackville and Katz JJ) agreed, upholding the conferral of jurisdiction to resolve applications for preliminary discovery. Their Honours also rejected the proposition that there could be no 'matter' unless a legal proceeding defining the dispute and identifying the claim for a remedy had been instituted. As the Full Court recognized (at 14 [49]-[50]) one must bear in mind the context in which discussions of the word 'matter' appear in judgments of the High Court, including in Re Judiciary and Navigations Acts (1921) 29 CLR 257 ('Re Judiciary and Navigations Acts') at 265. The Full Court said (at 14-15 [50]-[55]:
The seminal passage in Re Judiciary and Navigation Acts also rejects the proposition that a matter, in the constitutional sense, is co-extensive with a legal proceeding. The passage is as follows (at 265-266):
"It was suggested in argument that 'matter' meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word 'matter' in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law."
The reference to an "immediate right, duty or liability" was used by the Court to distinguish a genuine controversy from a desire to obtain an advisory opinion from the Court divorced from such a controversy. It was not intended to, and cannot be read as, denying the existence of a matter unless proceedings claiming substantive rights have been instituted.
….
Of course, if a controversy is the subject of existing proceedings claiming substantive relief the scope of the controversy (or 'matter') is likely to depend, in part, on what the parties allege in the pleadings and how they have conducted the litigation: Abebe at 561 [139] … per Gummow and Hayne JJ. But that does not mean that unless a party has instituted proceedings claiming substantive relief there can be no matter in respect of which jurisdiction can be conferred on the Federal Court. It is the justiciable controversy which constitutes the matter. That controversy may or may not be co-extensive with legal proceedings already instituted.
….
In determining whether there is a "subject matter for determination in a legal proceeding" in respect of which Parliament can define the jurisdiction of a federal court, it is doubtless necessary for the relevant matter to be capable of identification. Doubtless, too, there can be no matter unless a claim is made that can be seen to involve "an immediate right, duty or liability to be established by the determination of the Court". But it is only a claim (with the necessary federal elements) that is necessary. A matter can exist even though a right, duty or liability has not been established and, indeed, may never be established: Abebe at 528 [32] … per Gleeson CJ and McHugh J …. (Emphasis added.)
49 Hooper v Kirella has been regularly followed and applied in preliminary discovery applications in this Court: see, e.g., Allphones Retail Pty Ltd v Australian Competition & Consumer Commission (2009) 259 ALR 354; Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352; Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2007) 163 FCR 554 ('Optiver'); Rush v Commissioner of Police (2006) 150 FCR 165; and Kennedy v Wallace (2004) 208 ALR 424.
50 Hooper v Kirella has not, however, been confined to the preliminary discovery context. The Full Court (Heerey, Sackville and Siopis JJ) applied the reasoning in that case in Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398. This was an appeal against the grant of leave to investors to join insurers in a suit by investors to recover losses from a registered management scheme, in which the investors sought (amongst other things) a declaration that the insurers were liable to indemnify the responsible entity of the scheme. Focussing on the distinction between a 'matter' and the legal proceedings in which the matter is determined, the Full Court rejected the submission that there was no 'matter' or justiciable controversy because no declaration could be made in the proceeding to bind the insurers and the insured: see 408-410 [43]-[51].
51 In the present case, the respondents submit that the applicants may in fact never bring their claims before the Court. In this event, so they say, the Court would have dealt with non-federal questions raised by the current application without a federal claim having ever enlivened the Court's jurisdiction. Hooper v Kirella deprives this argument of much of its force. As Tamberlin J helpfully remarked in Optiver at 559-60, Hooper v Kirella held that "[t]he 'matter' was the underlying substantive claim, and not the ancillary application for preliminary discovery" and that "[b]eing ancillary, the preliminary discovery decision was deemed to be within the scope of the substantive 'matter'". Hooper v Kirella shows that the jurisdiction may be enlivened even though there has been no initiating process seeking determination of substantive federal claims. Rather, federal jurisdiction will be enlivened in the absence of an initiating process where vindication of a right in a substantive federal claim depends on the resolution of a prior preliminary application (as here and in the case of a preliminary discovery application).
52 As the affidavit of Mr Maitland and the proposed pleading shows, the applicants have existing claims against the respondents arising out of events between May 2004 and late September 2006. The applicants clearly have standing to bring them. The claims are ones that in due course can be determined by the Court by reference to legal rules, principles and standards: cf Abebe at 524-5 [25]. These existing claims constitute a federal matter, being a justiciable controversy in respect of which this Court would have jurisdiction. The controversy constituting the federal matter is defined by the claims in the proposed pleading. These claims are to enforce an "immediate right, duty or liability" as that expression appears in Re Judiciary and Navigation Acts at 265; they are not seeking a merely advisory opinion and do not involve a hypothetical question. The affidavit evidence of Mr Maitland shows that the applicants intend to advance these claims in a proceeding in this Court and that they bring their current application in order that they are not barred by the Limitation Act from so doing.
53 In the present case, the federal matter is the underlying substantive claims, not the ancillary application for leave under s 47A of the Limitation Act, and this ancillary application is to be considered as within the scope of the federal matter. The relief sought is incidental to the controversy between the parties, in that, if granted, it allows the applicants to pursue their claims in the Court. The fact that preliminary discovery has a distinct curial history does not make the reasoning in Hooper v Kirella inapplicable in this case. Just as an application for preliminary discovery enlivens federal jurisdiction, so too this application for leave under s 47A(3) of the Limitation Act enlivens federal jurisdiction, because, as for a preliminary discovery application, it is brought of necessity before an initiating process to vindicate a federal claim. That is, since leave cannot be granted retrospectively, the applicants apply for leave in order that they might properly bring their action, vindicate their rights, and establish the respondents' liability. To adapt what Finn J said in Airservices, this application is appropriate because it assists in the administration of justice in relation to the making of the federal claims, which would be instituted if leave were granted.
54 The applicants might, as the respondents say, walk away from further litigation, but this possibility is not enough to deny a finding that there are identified existing federal claims constituting a single justiciable controversy that, according to the affidavit sworn by the applicants' solicitor, the applicants wish to bring into this court. The relief sought is such that, if granted, will remove a bar that would prevent the applicants from pursuing a substantive remedy.
55 I would, therefore, answer the question raised by the respondents' motion - does the Court have jurisdiction to deal with the applicants' present application - in the affirmative. This application is properly treated as incidental to any exercise of judicial power over the federal 'matter' presented by the underlying existing federal claims disclosed in Mr Maitland's affidavit and the proposed pleading; and, in the circumstances disclosed, federal jurisdiction has been enlivened. For the reasons stated, I would dismiss the respondents' motion.
56 Before the hearing, the parties agreed that, in addition to the issues raised by the respondents' motion, the applicability of the Limitation Act should be argued as well, although they did not address the question whether, if the Limitation Act applied, it would be appropriate to make an order granting the applicants the leave under s 47A(3) that they sought. No order was sought under O 29 r 2 of the Rules; and I doubt that any such order would have been made even if sought. In Repacholi McKerracher J considered the arguments as to whether or not s 47A of the Limitation Act applied to similar proceedings, saying there was force in CASA's submission that it did but declining to decide the issue on the basis that it was premature to do so: 263 ALR at 123 [140]. In all the circumstances, having concluded that the Court has jurisdiction with respect to the applicants' leave application, it is not appropriate to express any definitive view as to the applicability of s 47A of Limitation Act before hearing the applicants on the question whether they should be granted leave under s 47A(3) of that Act.
57 Accordingly, bearing in mind the passage of time, the applicants will be afforded an opportunity to be heard on this latter question at the nearest opportunity. I would also afford the parties an opportunity to be heard on the question of costs of the respondents' motion at that time too.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.