The jurisdiction of the Court
32 Before turning to the primary judge's reasons there is an antecedent matter which requires attention. That is the question of jurisdiction. In the court below, Truthful Endeavour filed an interlocutory application seeking to strike out the action as an abuse of process on the ground that the Court did not have the jurisdiction to hear it. The interlocutory application was not pressed and her Honour dismissed it without giving reasons. The proposition that the Court lacked jurisdiction was never revived, although the appellant's written submissions (para 22) contended that the claim for a resulting trust was not within the exclusive jurisdiction of a court exercising jurisdiction under the Bankruptcy Act Still, it is the first duty of a court to be satisfied of its jurisdiction - its public authority to adjudicate: Federated Engine Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 at 415; Khatri v Price [1999] FCA 1289; 95 FCR 287 at [14]. Presumably the primary judge was so satisfied. In that she was undoubtedly correct. But there is a decision of the Victorian Supreme Court which might cast doubt on this matter. Even in the absence of challenge, any such doubt should be eliminated.
33 The essential character of the proceeding which brings it within federal jurisdiction is straightforward.
34 As we have already said, Mr Condon is the trustee of Mrs Rayhill's bankrupt estate. He was appointed trustee under the authority of the Bankruptcy Act when the sequestration order was made. At that time Mrs Rayhill's property vested forthwith in him and became divisible amongst her creditors: Bankruptcy Act, ss 58 and 116(1). "Property" in this context refers to property of "every description": see the definition of "property" in s 5(1) of the Bankruptcy Act. It includes the right to a chose in action or debt and, relevantly, to an equitable charge by way of security. The application brought by the trustee was one "to declare for…the title of the trustee to any property": Bankruptcy Act, s 31(1)(f). Section 27 of the Bankruptcy Act confers on this Court and the Federal Circuit Court of Australia concurrent jurisdiction "in bankruptcy" and provides that that jurisdiction is exclusive of all other courts except for the jurisdiction of the High Court under s 75 of the Constitution and of the Family Court under s 35 or 35A of the Bankruptcy Act. (As will be seen below, s 27 must now be read in the light of the Cross-vesting Act, s 4(1).)
35 For present purposes, it is unnecessary to discuss the operation of s 27 and the meaning of the phrase "in bankruptcy", beyond referring to two Full Court decisions: Scott v Bagshaw [2000] FCA 816; 99 FCR 573 and Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172; 171 FCR 380. From those decisions, the former in particular, there would appear to be no doubt that an application of the kind referred to in s 31(1)(f) is a proceeding in bankruptcy for the purposes of s 27(1) and the definition of "bankruptcy" in s 5(1). In Scott v Bagshaw the trustee of a family trust (Scott) applied for a declaration that each of three properties was charged in his favour with the payment of moneys due under a loan agreement and for the appointment of a receiver to the properties to effect their sale and, to the extent of the debt, the payment to him of the proceeds of sale (after costs and expenses were deducted) and the balance to two of three respondents. The properties were held in the joint names of the first respondent, a bankrupt, and his wife, who was the second respondent (Mr and Mrs Bagshaw). The third respondents were the bankrupt's trustees in bankruptcy. The primary judge found there was no federal jurisdiction and stayed the proceeding. The Full Court granted leave to appeal and allowed the appeal. After referring to ss 27(1) and 31(1)(f), the Full Court said at [19]-[20]:
19 On the face of the pleadings, the claim is one to realise an equitable charge. The pleadings make no reference of any section of the Act and the matter may be capable of reaching judgment without reference to any section.
20 However, the undoubted effect of an order being made in the terms sought by the appellant would be that a declaration would be made against the title of the third respondents. Upon the third respondents becoming trustees, the title to the properties (and subsequently to the money representing part of the properties) became vested in them: subs 58(1) and s 132 of the Act. The consequence of any such order must therefore be that it would have a necessary adverse effect on the title of the third respondents to the extent that it established title to the appellant. That is a matter that falls within the jurisdiction in bankruptcy.
36 Further, in being a controversy as to what property vests in the trustee by the operation of s 58(1) and what is divisible amongst creditors under s 116(1), the matter can readily be seen as one that arises under a law of the Parliament for the purposes of s 76(ii) of the Constitution and s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
37 Until recently, these propositions as to jurisdiction, and especially that contained in the preceding paragraph, needed little elucidation: if a proceeding is within the jurisdiction "in bankruptcy", the "matter" of which the proceeding is part must be one arising under the law of the Parliament, that is, the Bankruptcy Act.
38 In Gorkowski v Turner [2014] VSC 200; 285 FLR 66, however, Vickery J in the Victorian Supreme Court held, in effect, that if the issues to be decided by the Court to resolve the controversy about a trustee's title to property do not specifically involve a federal statute, but are ones which depend for their resolution upon general equity or common law, the matter will not be one which arises under a law of the Parliament. If that were right, it would deny the conclusions of Scott v Bagshaw and Meriton Apartments that the jurisdiction in such a case was "in bankruptcy". If that were right, the coherent jurisdictional foundation of both this Court and the Federal Circuit Court to supervise and control the exercise of power of, and the estates held by, trustees in bankruptcy would be undermined. It is therefore necessary to identify why and to what extent, with respect, the decision in Gorkowski v Turner is wrong.
39 Gorkowski v Turner concerned a dispute in the Practice Court of the Supreme Court of Victoria about equitable title to land that had been in the name of the bankrupt, Mr Gorkowski. After some trouble and inconvenience (recounted by the judge at [4] of his reasons), the trustee in bankruptcy, Mr Turner, became the registered proprietor of the land in question, thus giving consequential effect to s 58(1) of the Bankruptcy Act. Mrs Gorkowski then filed proceedings in the Supreme Court seeking, amongst other things, a declaration that she owned the property in equity by reason of the dealings between her and her husband in the years before his bankruptcy. Thus, she asserted that the trustee held the property on trust for her. Such a claim had the necessary character of an assertion by her that, pursuant to s 116(2), the property was not divisible amongst the creditors of her husband's bankrupt estate.
40 Mr Turner filed an application to strike out the proceedings on the basis that the Supreme Court had no jurisdiction because the matter was, by the definition of bankruptcy in s 5(1) and by ss 27 and 31(1)(f) of the Bankruptcy Act (being an application to declare against the title of the trustee of the property), within the exclusive jurisdiction of the Federal Court of Australia and the Federal Circuit Court of Australia. One argument of Mrs Gorkowski was that the Supreme Court was invested with federal jurisdiction by virtue of s 4(1) of the Cross-vesting Act. His Honour upheld that contention and then proceeded to consider the question of whether the proceeding was a "special federal matter" within the meaning of the Cross-vesting Act. Section 6 of the Cross-vesting Act requires a State or Territory Supreme Court in a pending proceeding which is a "special federal matter" (defined in s 3) to transfer the proceeding to the Federal Court (or, in an appropriate case, the Family Court or the Family Court of Western Australia or the Supreme Court of the Northern Territory) unless it makes an order that the proceeding be determined in the court in which it is pending. Such an order may only be made if the court is satisfied that there are special reasons for doing so in the particular circumstances of the case and after written notice has been given to the Attorneys-General of the Commonwealth and of the State or Territory where the proceeding is pending.
41 The judge first examined the Bankruptcy Act. His Honour concluded, in substance, that the proceeding was "an application to declare against the title of the trustee" for the purposes of s 31(1)(f) of the Bankruptcy Act and was therefore the exercise of jurisdiction "in bankruptcy". Thus, prima facie the application was one in respect of which the Federal Court had exclusive jurisdiction. That conclusion involved the judge following, at this stage of his reasoning, Scott v Bagshaw and Meriton Apartments. (It is unnecessary to discuss the differences of opinion in Meriton Apartments between Branson and Greenwood JJ, on the one hand, and Perram J, on the other.)
42 His Honour then considered the effect of the Cross-vesting Act, and first, the vesting of jurisdiction by s 4(1) of that Act. In short, his Honour reasoned, the effect of that (later) statute upon the (earlier) Bankruptcy Act was to impliedly repeal that part of s 27 of the Bankruptcy Act as provides for exclusive jurisdiction in the Federal Court and Federal Circuit Court. In so concluding at [21]-[37], his Honour relied on a decision of the Full Court of this Court in Re Wilcox; Ex parte Venture Industries Pty Ltd [1996] FCA 1497; 66 FCR 511 at 523-525 (Black CJ, Cooper and Merkel JJ). In Re Wilcox, the Court concluded that the investing of jurisdiction in State Supreme Courts by s 4(1) of the Cross-vesting Act was effective to "disturb" (for this language, see Re Wilcox at 525B, that is, impliedly repeal) the pre-existing regime of exclusive jurisdiction, unless a specific exclusion to the operation of s 4(1) was found in s 4(4) of the Cross-vesting Act, identifying matters arising under nominated statutes.
43 There is no call, here, to question the correctness of Re Wilcox or the judge's reliance upon it to conclude that the Supreme Court had jurisdiction to hear Mrs Gorkowski's application, notwithstanding the terms of s 27 of the Bankruptcy Act. The above essential reasoning in Re Wilcox can be seen to be reflected in that of the New South Wales Court of Appeal (Basten, Gleeson and Leeming JJA) in Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157 at [8]ff. However, the Court of Appeal disapproved of one aspect of Re Wilcox insofar as the Full Court (66 FCR at 525C-E) expressed the view that, notwithstanding the general approach to the operation of s 4(1) and (4) that they had outlined, the express restriction on State courts in s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to "review" survived s 4(1) of the Cross-vesting Act. It is unnecessary to enter this debate. It is the next issue with which Vickery J dealt, concerning "special federal matter", which is controversial.
44 Having concluded that the Supreme Court was invested with jurisdiction by s 4(1) of the Cross-vesting Act (notwithstanding the terms of s 27 of the Bankruptcy Act), his Honour then proceeded to deal with the question of whether "bankruptcy was a special federal matter": see the proposition at [38] and what follows at [39]-[49] of his Honour's reasons. The only relevance for the posing and answering of that question was the operation (or not, as the case may be) of s 6 of the Cross-vesting Act concerning the transfer of matters to the Federal Court.
45 At this point, it is helpful to refer in a little more detail to investing of federal jurisdiction in State courts and to the Cross-vesting Act. Section 4(1) of the Cross-vesting Act provides, relevantly, that where the Federal Court has jurisdiction with respect to a civil matter (whether conferred before or after commencement of the Cross-vesting Act) and a Supreme Court would not, apart from this section, have jurisdiction with respect to the matter, then the Supreme Court is invested with federal jurisdiction in respect of the matter. State courts are invested (subject to various qualifications and conditions by the mechanics of withdrawal and simultaneous investing in s 39(1) and (2) of the Judiciary Act) with federal jurisdiction in all matters referred to in ss 75 and 76 of the Constitution. This includes s 76(ii) - any matter arising under any law made by Parliament. Specific statutes may qualify or restrict that general investing. An example is s 27 of the Bankruptcy Act which provides for exclusive jurisdiction of two federal courts in bankruptcy. The authority of Parliament to make jurisdiction in federal courts exclusive is contained in s 77(ii) of the Constitution. Section 4(4) of the Cross-vesting Act lists various statutes and statutory provisions to which "[t]his section does not apply to a matter arising under". The Bankruptcy Act and provisions of it is, and are, not mentioned in s 4(4). Hence, on the reasoning of Re Wilcox, the judge concluded that s 4(1) operated to impliedly repeal s 27(1) of the Bankruptcy Act insofar as it provided for exclusive jurisdiction of the two named federal courts.
46 The policy of the Cross-vesting Act not only reached to identify matters in respect of which the exclusive jurisdiction of federal courts was not to be disturbed (s 4(4)), but also to identify matters that should be transferred to federal courts. This was done by the notion of a "special federal matter".
47 It is thus crucial for the operation of the Cross-vesting Act and the policies that underlie it, to understand what a "special federal matter" is. That phrase is defined in s 3(1) of the Cross-vesting Act and identifies certain matters in respect of which the State or Territory court would not, but for the Cross-vesting Act have jurisdiction, as follows:
3 Interpretation and application
(1) In this Act, unless the contrary intention appears:
….
special federal matter means:
(a) a matter arising under Part IV of the Competition and Consumer Act 2010 (other than under section 45D, 45DA, 45DB, 45E or 45EA); or
(aa) a matter arising under the Competition Code (as defined in section 150A of the Competition and Consumer Act 2010) of the Australian Capital Territory or the Northern Territory; or
(ab) a matter arising under section 60G of the Family Law Act 1975 in a court other than the Family Court of Western Australia or the Supreme Court of the Northern Territory; or
(b) a matter involving the determination of questions of law on appeal from a decision of, or of questions of law referred or stated by, a tribunal or other body established by an Act or a person holding office under an Act, not being a matter for determination in an appeal or a reference or case stated to the Supreme Court of a State or Territory under a law of the Commonwealth that specifically provides for such an appeal, reference or case stated to such a court; or
(c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
48 The closing clause of the definition (that the Supreme Court would not have jurisdiction apart from the Cross-vesting Act) is engaged by s 27(1) of the Bankruptcy Act.
49 As his Honour observed at [40], for an application of the kind brought by Mrs Gorkowski, the only relevant provision is para (e) of the definition in s 3(1).
50 Section 39B of the Judiciary Act deals with the original jurisdiction of the Federal Court. There are, of course, a very large number of statutes which contain individual conferrals of jurisdiction on the Federal Court. Section 27 of the Bankruptcy Act is an example. Section 39B(1A)(c) provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under any laws made by the Parliament (other than criminal matters). This provision operates according to its terms as a general conferral of jurisdiction: Transport Workers' Union of Australia v Lee [1998] FCA 756; 84 FCR 60 at 67; National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109; 91 FCR 513 at 520; Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1. It is not a gap filling provision or a bin for odds and ends of jurisdiction not previously given. As a general conferral of jurisdiction, it is to be construed liberally, eschewing limitation and implications not found in the words of the provision: see the cases referred to in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325; 127 FCR 1 at 23 [54] and [55].
51 Recognising the character of s 39B(1A)(c) as a general conferral of civil jurisdiction of matters arising under laws of the Parliament, it was necessary, for the purpose of determining whether there was a special federal matter, to enquire whether the matter (the controversy) was within the jurisdiction of the Federal Court "by virtue of s 39B".
52 It should first be noted that, on the hypothesis thus far, the matter was within the jurisdiction of the Federal Court "under or by virtue of" s 27(1) and the definition of "bankruptcy" in s 5(1) of the Bankruptcy Act. Obviously, the Bankruptcy Act is a law of the Parliament. If a general conferral of jurisdiction such as s 39B(1A)(c) conferred jurisdiction on the Federal Court in matters arising under that Act, then the matter would be within the jurisdiction of the Federal Court both under or by virtue of the Bankruptcy Act and also by virtue of s 39B of the Judiciary Act. There being no reason to read para (e) of the definition of "special federal matter" in s 3(1) of the Cross-vesting Act as limited to matters within the jurisdiction of the Federal Court only by virtue of s 39B, if a proceeding such as Mrs Gorkowski's application was a matter arising under a law of the Parliament (the Bankruptcy Act), then it was a special federal matter.
53 If, as Vickery J found (at [42] of his reasons), Mrs Gorkowski's application was not a matter arising under the Bankruptcy Act, it is hard to see how it could be a "proceeding under or by virtue of the Act" and so within the federal jurisdiction "in bankruptcy", in which case both Scott v Bagshaw and Meriton Apartments would have been wrongly decided.
54 His Honour was of the view that Mrs Gorkowski's application was not a matter arising under the Bankruptcy Act, based on his reading of certain passages from R v Commonwealth Court of Conciliation; Ex parte Barrett [1945] HCA 50; 70 CLR 141 and Felton v Mulligan [1971] HCA 39; 124 CLR 367. The reasoning was at [42]-[49] (footnotes omitted):
42 [T]he present proceeding is not a matter "arising under" the Bankruptcy Act.
43 The test for determining whether a matter "arises under a federal law" was set out by the High Court in R v Commonwealth Court of Conciliation; Ex parte Barrett where Latham CJ said:
" … a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation or validity of the law."
44 To similar effect is Felton v Mulligan, where the High Court considered what was necessary for a matter to arise under a Federal law.
45 Menzies J said in Felton:
"A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law."
46 In the same case, Windeyer J said to similar effect:
"In my view a matter does not arise for adjudication under a law made by the Commonwealth Parliament unless a statute is relied upon as giving a right claimed or as the direct source of a defence asserted."
47 In the present case, although the outcome of the proceeding will affect the property of the Trustee in Bankruptcy, the proceeding does not owe its existence to the Bankruptcy Act in the relevant sense. The issue in question in this proceeding does not owe its existence to any Federal law or nor will the outcome depend upon Federal law for its enforcement. No provision of the Bankruptcy Act is relied upon by either the Plaintiff or the Defendant in the pleadings either to found the Plaintiff's causes of action or to provide a defence to the Defendant, other than paragraph [16] of the defence which pleads that this Court does not have jurisdiction to hear this dispute, founded upon s 27 of the Bankruptcy Act.
48 The proceeding involves the exercise of the Supreme Court's general jurisdiction to determine equitable property rights between two individuals, one of whom happens to be a bankruptcy trustee.
49 Accordingly, the present proceeding is not a "special federal matter" under the Cross Vesting Act and the Supreme Court of Victoria is invested with jurisdiction to determine it.
55 To understand the meaning of the phrase "matter arising under" a law of the Parliament, it is first necessary to understand the width of the word "matter". It is the whole justiciable controversy: South Australia v Victoria [1911] HCA 17; 12 CLR 667 at 675; and Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at [139]-[142]. In Gorkowski it was the claim by Mrs Gorkowski that she was the beneficial owner of property that Mr Turner said was vested in him by a law of the Parliament.
56 The two cases referred to by the judge (Ex parte Barrett and Felton v Mulligan) are two central cases on the meaning of the phrase "arising under" in this context, but they are not exhaustive of the enquiry. The passage from Latham CJ in Ex parte Barrett quoted by the trial judge is indeed central. If the "right in question" owes its existence to federal law, then the matter is one arising under the law, even if the matter can be resolved without involving its interpretation. That the resolution of Mrs Gorkowski's claim was to be reached through an examination only of equitable doctrine (see [48] of the judge's reasons) is not, with respect, to the point. Mr Turner's ownership of the property owed its existence and character to federal law: ss 58(1) and 116(1) of the Bankruptcy Act; Mrs Gorkowski's claim was that she was the beneficial owner of the property which was therefore not property divisible among the creditors of her husband's estate for the purposes of s 116(2) of the Bankruptcy Act. The "right in question" claimed by Mr Turner derived from ss 58(1) and 116(1); the "right in question" claimed by Mrs Gorkowski derived from s 116(2).
57 With the utmost respect, [47] of the reasons confuses a proceeding owing its existence to a federal law, such as where a federal statute creates a cause of action (a quintessential example of a matter arising under a federal law), with a right created by federal law that is in question in, or the subject of, the proceeding. It was the latter to which Latham CJ was referring in Ex parte Barrett. Similarly, for the purposes of what Menzies and Windeyer JJ each said in Felton v Mulligan, the federal law vested the rights claimed which were in issue. Mrs Gorkowski challenged the existence of rights conferred on the trustee by federal law. For the matter to arise under a federal law it was not necessary for that challenge to be articulated by reference to federal law. That the challenge (and so the issues in the case) was (or were) based on equitable principle did not detract from the fact that what was in issue was Mr Turner's title given by ss 58(1) and 116(1) of the Bankruptcy Act and Mrs Gorkowski's claim that (because of equitable principle) she beneficially owned the property so that the property was not divisible amongst the creditors of the estate by reason of s 116(2) of the Bankruptcy Act.
58 The essential error that is contained in [47] of the reasons is the reasoning to the effect that for there to be a matter arising under the Bankruptcy Act, there must be either a proceeding founded on federal law or a dispute about federal law. If there were, there would, of course, be a matter arising under a federal law; but these matters are not the only matters arising under a law of the Parliament. In this respect, the judge did not, with respect, correctly apply the statements of Latham CJ, Menzies J and Windeyer J in Ex parte Barrett and Felton v Mulligan. His Honour erroneously equated the "issue in question" with the equitable principles or issues to resolve the dispute. Contrary to his Honour's conclusion, the rights in issue were not the equitable principles or issues to resolve the dispute, but were Mr Turner's claim to ownership or Mrs Gorkowski's claim that the property was not divisible. Both of those rights owed their existence to federal law, in the former case to ss 58(1) and 116(1) of the Bankruptcy Act and in the latter to s 116(2). That the outcome of a controversy does not depend on federal law for resolution or enforcement is not determinative.
59 The error is evident when one considers LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575, an authority to which his Honour does not appear to have been taken. In that case two companies were in dispute over quotas for the import of vehicles under import licences. The claims were based in contract and trust. The action was started in the NSW Supreme Court where Rogers J found for the defendant (BMW). The plaintiff (LNC Industries) applied for leave to appeal to the Privy Council. If Rogers J had been exercising federal jurisdiction, s 39(2)(a) of the Judiciary Act would have precluded any appeal to the Privy Council. The Attorney-General for the Commonwealth had the case removed to the High Court which held that federal jurisdiction was being exercised because the subject matter of the controversy (the quotas) owed its existence to federal law. The "right in question" owed its existence to federal law; it was not the contractual and equitable principles by reference to which the matter was resolved. The Court said the following at 581-582:
It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v. Mulligan. On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett. The conclusion reached by Latham CJ in that case, and stated in a passage that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v. Mulligan.
When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett, Latham CJ said that the view which he expressed was in accordance with Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. [11] where Dixon J. said:
"The Seat of Government is an integral part of the Federal System, and I see no reason for denying the application of sec. 76 to laws made pursuant to sec. 52(I). It would follow that a law of the Parliament conferring jurisdiction on the High Court is warranted by sec. 76(II), at least in relation to matters which arise as the result of enactments of the Parliament. It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec. 6), and the Seat of Government (Administration) Act 1910 (see secs. 4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec. 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament."
This view conforms with what was said by Walsh J. in Felton v. Mulligan and with the judgments of members of this Court in Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd.
The contracts in the present matter were concerned solely with entitlements under the Regulations. The object of the plaintiff's claim was identified in the statement of claim as "any benefit accruing" after a certain time as a result of the utilization of a quota under the Regulations. It is common ground that the "benefit" mentioned is any "benefit" which might accrue under the Regulations. The subject matter of the contracts and of the action arose under and existed only by reason of the provisions of the Regulations and the Act in pursuance of which the Regulations were made. The Act was of course a law of the Parliament and the Regulations were made under it.
The present case is not, to use the words of Windeyer J. in Felton v. Mulligan, one in which the Regulations are merely "lurking in the background". The very subject of the issue between the parties is an entitlement under the Regulations. In substance the plaintiff's primary claim is to the benefit of rights and privileges under the Regulations. In these circumstances the matter involved in the action arose under laws made by the Parliament. The Supreme Court was therefore exercising federal jurisdiction in dealing with it and it follows that s. 39(2)(a) of the Judiciary Act precludes an appeal to Her Majesty in Council.
(Footnotes omitted; emphasis added.)
60 If a controversy or matter manifested by a proceeding regarding beneficial ownership of property (by reference to equitable principles) claimed by the trustee in bankruptcy by force of ss 58(1) and 116(1) did not arise under the Bankruptcy Act, then what was said by the Full Court in Scott v Bagshaw at [20] would have been wrong. The Full Court was not wrong. In such a case a matter does arise under the Bankruptcy Act. It is a matter in bankruptcy; it is a matter that arises under a law of the Parliament (the Bankruptcy Act); it is a matter within the original jurisdiction of the Federal Court; it is a matter in respect of which the Supreme Court of a State or Territory would not, apart from the Cross-vesting Act, have jurisdiction within the closing clause of the definition of "special federal matter" in s 3(1) of the Cross-vesting Act; and it is a "special federal matter" for the purposes of the Cross-vesting Act, in particular s 6 of that Act.
61 With the utmost respect, Vickery J's conclusions in Gorkowski that a proceeding of the kind before him was not a matter arising under the Bankruptcy Act, was not within the original jurisdiction of the Federal Court by virtue of s 39B of the Judiciary Act, and so was not a "special federal matter" within ss 3 and 6 of the Cross-vesting Act were wrong and should not be followed.