Is the matter one that arises under federal law?
26 The first issue is whether the matter is one that arises under a federal law: s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In this regard, the "matter" must be understood as being the justiciable controversy between the parties, comprised of the substratum of facts representing the dispute or controversy between them, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 608 (Mason, Murphy, Brennan and Deane JJ). Relevantly for present purposes, one of the basis upon which a federal matter arises is if an asserted right, duty or obligation in issue owes its existence to a federal law: LNC Industries v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ, Murphy J agreeing at 582-583).
27 In support of his contention, Mr Tucker relied primarily on the decision of Lee J in Oliver. The decision in Oliver concerned defamatory reporting by the Nine Network about a late-night altercation between a tourist from the United Kingdom and a player on the Australian Rugby Sevens Team, Mr Stannard. The defamed tourist, Mr Oliver, struck Mr Stannard once, causing a career ending head-injury. Mr Oliver was charged but acquitted on the basis of self-defence. The defamation was found to have occurred in the news reporting of the acquittal. It was found to have carried defamatory imputations that Mr Oliver was a coward who punched a defenceless man causing him grievous injury and ruining his career as a professional athlete (at [68]).
28 On the first day of the hearing in that matter it became apparent that the respondent alleged the publication occurred solely within New South Wales (at [6]). Though the parties consented to the jurisdiction of the Court in that matter, jurisdiction cannot be conferred by consent: see Oliver at [9] and the authorities cited therein. His Honour was therefore required to determine whether the Court had jurisdiction to hear and determine the matter, and in doing so, discussed several points of principle on which Mr Tucker relied in the present proceeding.
29 In particular, his Honour set out the proper approach to the question of federal jurisdiction at [11]-[18]:
11. … For those interested (and everyone practising in courts exercising federal jurisdiction should be), the principles are explained in detail by Allsop J (as the Chief Justice then was) writing extracurially in the article Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Aust Bar Rev 29) [sic]. The starting point is s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which provides:
The original jurisdiction of the Federal Court of Australia also 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.
(emphasis added)
12. The "matter" is the justiciable controversy between the actors involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them. It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination: Fencott v Muller (1983) 152 CLR 570 at 603-608; Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at 584-585 [50].
13. When s 39B(1A)(c) of the [Judiciary Act] was introduced in 1997, Parliament changed this Court from being a court of specific federal jurisdiction into a court of more general federal jurisdiction, extending its reach to all controversies or "matters" across all areas with respect to which the Parliament of the Commonwealth has made laws. So long as a "matter" can be said to "arise under" a law of the Parliament, then the Federal Court is vested with jurisdiction to hear the whole of the dispute. It follows that once the jurisdiction of the Court has been invoked by reference to a justiciable issue within federal jurisdiction (say, a related claim under a federal statute), the Court has "accrued" jurisdiction to determine the whole "matter" or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-588 [136]-[147]. Accordingly, as a matter of impression and practical judgment, if a claim for defamation not otherwise within federal jurisdiction arises out of the same "matter" which is within federal jurisdiction, then it will form part of the one justiciable controversy and, if the jurisdiction of this Court is invoked, it will be the duty of this Court, exercising Chapter III judicial power, to quell the whole controversy. It is, of course, heterodox to speak of any notion of concurrent state and federal jurisdiction.
14. Secondly, the Federal Court has original jurisdiction to hear a "pure" defamation action (that is, without the addition of any other cause of action or defence arising under a federal statute) where the publication somehow involves the consideration of the implied constitutional freedom of communication on governmental and political matters even if, as will commonly be the case, it is contended that the implied constitutional freedom will be raised by a respondent by way of defence. I have already made reference above to s 39B(1A) of the JA. Subsection (b) of that section provides that the original jurisdiction of the Court also includes jurisdiction in any matter "arising under the Constitution, or involving its interpretation".
15 Thirdly, again focussing on s 39B(1A)(b) of the JA, where there is a publication in more than one "Australian jurisdictional area" being a State (see ss 11(1) and (5) of the Defamation Act 2005 (NSW) (Act) and its cognates), the full faith and credit provision of the Constitution (s 118) is engaged so as to enable courts to recognise and apply the provisions of the various uniform Defamation Acts as modifications of the laws of each Australian jurisdictional area and the common law of Australia. This is because where publications in more than one Australian jurisdictional area are sued upon, the law of each place of publication will create a substantive right to sue on that publication in that jurisdiction: see Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575.
16 Fourthly, and more broadly, as Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581, a federal matter arises if a right, duty or obligation in issue in the matter "owes its existence to federal law or depends upon federal law for its enforcement" including where the right claimed is in respect of a right or property that is the creation of federal law. Whether or not a matter arises does not depend upon the form of the relief sought: LNC Industries at 581. This would involve when a right or duty based on a Commonwealth statute in issue arises (even where it has not been pleaded by the parties, or a federal issue is unnecessary to decide). A common example illustrates the potential breadth of this concept. It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the JA. Chapter 2B of the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay's Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2A.2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth.
17 This and other recondite ways that jurisdiction is attracted can be put to one side for present purposes, however, because the invocation of federal jurisdiction in the present case is quite straightforward. Even if I were to find, contrary to Mr Oliver's assertion in the initial statement of claim, that upon consideration of the evidence there was no proof of publication outside New South Wales, that does not mean the matter has not always been within federal jurisdiction since the assertion was made: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. As the now Chief Justice noted in (2002) 23 Aust Bar Rev 29 at 45:
Once a non-colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC's testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms:
So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction.
'Colourable' imports improper purpose, or a lack of bona fides. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process.
18 There is no suggestion here that that the relevant assertion as to publication in the Territories made in the initial statement of claim was colourable. Federal jurisdiction was thereby attracted and once federal, the matter is always federal: Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at 13-16 [45]-[55]. If an allegation of publication in the Territories is made bona fide, the Court is properly seized with jurisdiction to deal with the controversy and always will be even if the non-colourable allegation was unnecessary to decide, abandoned, struck out, or otherwise rejected on the evidence adduced at trial. As it turns out in this case, no evidence was adduced by Mr Oliver to prove publication in the Territories being a material fact pleaded and upon which issue was joined. As a consequence, the allegation fails for want of proof, but this does not mean that federal jurisdiction, properly invoked upon the bona fide making of the allegation, somehow disappeared like a will-o'-the-wisp.
(Emphasis added)
These principles have been cited with approval by judges of this Court, including most recently in Humphrys (Tobin) v Chief Executive Officer of Department of Communities WA [2021] FCA 586 at [7] (Colvin J) and Somasundaram v Luxton [2020] FCA 1076 (Murphy J) at [47].
30 Mr Tucker further submitted that this proceeding raises a 'federal matter' as a federal statute, the FW Act, formed part of the substratum of fact to the dispute, in the sense that it was relevant to the justiciable controversy between the parties. More specifically, it was said that the FW Act formed part of the dispute with the SRO as Mr Tucker's termination was effected under cl 21 of the VPSEA, which is approved under Part 2-4 of the FW Act.
31 In addition, though not pleaded in the original Statement of Claim, Mr Tucker alleges in the ASoC that the imputations contained in the Email included that he breached cl 21 of the VPSEA and s 50 of the FW Act (ASoC at 4, (k)). Mr Tucker submitted that although no right arising under the FW Act is in issue in this proceeding, in the sense of falling for determination, one of the issues that the Court will need to consider is whether the Respondents were exercising rights that owe their existence to federal law.
32 Mr Tucker conceded that the Court would not be required to construe the terms of the VPSEA or FW Act so as to find breach or not per se, but rather would be required to assess whether the reasonable observer would understand the Email as conveying an imputation that Mr Tucker breached cl 21 of the VPSEA and, consequentially, s 50 of the FW Act. Mr Tucker's submission accords with Latham CJ's oft-cited statement in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 154 that a matter arises under 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": see also LNC Industries at 581.
33 The Respondents submitted that the accrual of federal jurisdiction requires consideration of two issues: first, whether there is a "matter" arising within the subject matter area of federal jurisdiction; and second, whether that matter reflects the justiciable controversy between the parties: Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at [16]-[17] (Allsop CJ, Besanko and White JJ). The Respondents conceded that the "matter", properly understood, is the justiciable controversy between the parties, comprised of the substratum of facts representing or amounting to the dispute or controversy between them and encompassing all claims made within the scope of the controversy: CGU Insurance v Blakeley [2016] HCA 2; 259 CLR 339 at [30] (French CJ, Kiefel, Bell and Keane JJ).
34 However, having regard to these principles, the Respondents submitted that there is no right or duty in issue that 'depends upon federal law for its enforcement' or 'owes its existence' to federal law. To the extent that the pleadings disclose any matter of a federal nature, it is by reference to the VPSEA agreement, that being an instrument approved by the Fair Work Commission pursuant to the FW Act.
35 The Respondents submitted that the remote connection between the alleged defamatory imputations in the Email and the FW Act do not bring federal law into the proceeding. That is to say, federal law is merely incidental or tangential to one of the many alleged imputations. Indeed, the Respondents contended that Mr Tucker makes no claim pursuant to any Commonwealth legislation, including the FW Act, and does not bring into issue the interpretation or validity of the VPSEA, being the instrument approved by the FW Act.
36 The Respondents further submitted that to the extent that Mr Tucker relies on a passing reference to the FW Act in his pleading as founding federal jurisdiction in the controversy between the parties, it ought to be viewed as colourable. In this sense, it was the Respondents' submission that the FW Act has no part to play in the proceeding and is not a bona fide basis to allege that this Court has jurisdiction: see, eg, Rana at [21]-[22], cited with approval in Prasad v Google LLC [2020] FCA 67 at [18] (Wheelahan J).
37 As a matter of analysis, the matter as pleaded in the ASoC asserts a right or duty that owes its existence to a federal statute. However, I accept the Respondent's characterisation of the alleged imputation in relation to the contravention of cl 21 of the VPSEA, and the alleged consequential contravention of the FW Act, as colourable.
38 Though I agree with the Respondents' conclusion that the claim is colourable, and indeed an artificial attempt to invoke the Court's jurisdiction, I express my reasons for that conclusion in a manner that may not be entirely the same as those proffered by the Respondents.
39 As Thawley J explained in Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 at [387]:
An imputation is defamatory of a person if it would cause the ordinary reasonable reader to think the less of the person when applying the ordinary reader's general knowledge and their knowledge of standards held by the general community: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638‑639 (Mason and Jacobs JJ, Gibbs and Stephen JJ agreeing), Chakravarti at [57] (Gaudron and Gummow JJ); Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] and [60] (French CJ, Gummow, Kiefel and Bell JJ).
[Emphasis added]
See also Murphy v Nationwide News Pty Ltd [2021] FCA 381 at [34].
40 In my view, the alleged defamatory imputations in 4 and 4 of the ASoC, set out above at [13], are untenable and, indeed, borderline risible. The derivative imputation said to be conveyed by the express reference to a possible breach of the VPSEA is only capable of being so distilled by the ingenuity of a lawyer in search of a grievance. That is Mr Tucker. To any other reasonable observer, no such meaning could possibly be conveyed by the text of the Email.
41 This conclusion is fortified by the timing and nature of the amendments to Mr Tucker's pleading. The initial Statement of Claim, unamended, did not plead imputations drawing on a federal statute and, indeed, alleged only publication in Victoria. Further, the amendments were only introduced after the Respondents raised the question of jurisdiction.
42 This conclusion is also fortified by the absence of any evidence that the Email, or any statement within in it, defamatory or otherwise, was published publicly. As I explain below, the evidence establishes that the Email was 'published', in the sense of being transmitted, only to those individuals with a proper interest in being made aware of the allegations against Mr Tucker by reason of their responsibilities within the SRO, to the legal representatives of the SRO, or in the case of WorkLogic, to a consultant engaged to assist the SRO with its investigation into those allegations. In these circumstances, I do not accept that Mr Tucker was motivated in bringing this claim for the proper purpose of protecting his reputation or to recover damages for harm to it.
43 Accordingly, it is apparent that the assertions in 4 and (k) of the ASoC are not made bona fide: see Rana at [22]; Oliver at [17]. Mr Tucker's claim is colourable, the amendments having been made solely to attract federal jurisdiction and without a proper basis. It follows that federal jurisdiction is not established on the first basis submitted by Mr Tucker.