Citta Hobart Pty Ltd & Anor v Cawthorn

[2022] HCATrans 1

[2022] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H7 of 2021

B e t w e e n -

CITTA HOBART PTY LTD

First Appellant

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

Second Appellant

and

DAVID CAWTHORN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON TUESDAY, 8 FEBRUARY 2022, AT 10.00 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   I will announce the appearance of the parties and the interveners.

MR D.J. BATT, QC appears with MS J.D. WATSON for the appellants.  (instructed by Page Seager Lawyers)

MR R. MERKEL, QC appears with MR S.A. BECKETT, MR C.J. TRAN and MS L.E. HILLY for the respondent.  (instructed by Hobart Community Legal Service)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MS F.I. GORDON and MS R.S. AMAMOO for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears with MR M.O. PULSFORD for the Attorney‑General for the State of New South Wales intervening.  (instructed by NSW Crown Solicitor’s Office)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, appears with MR S.R. PACK for the Attorney‑General for the State of Western Australia intervening.  (instructed by Solicitor‑General’s Office (WA)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, appears with MS F.J. NAGORCKA for the Attorney‑General of the State of Queensland intervening.  (instructed by Crown Law (Qld))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, appears with MS K.M. SCOTT for the Attorney‑General for the State of South Australia intervening.  (instructed by Crown Solicitor’s Office (SA))

MS R.J. ORR, QC, Solicitor‑General for the State of Victoria, appears with MR M.A. HOSKING for the Attorney‑General for the State of Victoria intervening.  (instructed by Victorian Government Solicitor’s Office)

MS S.K. KAY, SC, Solicitor‑General for the State of Tasmania, appears with MR D.R. OSZ for the Attorney‑General for the State of Tasmania intervening.  (instructed by Office of the Solicitor‑General (Tas))

MR C.L. LENEHAN, SC appears with MR D.P. HUME appears on behalf of the Australian Human Rights Commission as amicus curiae.  (instructed by Australian Human Rights Commission)

KIEFEL CJ:   The interveners do not appear on our panels on the screen but can see and hear what is occurring.  The Court will also take its morning break.  Yes, Mr Batt.

MR BATT:   Your Honours, by way of brief overview, the intended course of our oral address is as follows.  As to ground 1, we will commence with some general observations to frame the submissions.  Having done so, we will go briefly to the points of claim and defence and the Tribunal’s decision.  We will then take your Honours to the Full Court’s judgment and address upon its error.  Next, we will deal with the correct jurisdictional test, including why the respondent’s “no reasonable prospect of success” construct is, in our respectful submission, to be roundly rejected.  In conclusion on ground 1, we will submit that the Tribunal would have been exercising judicial power if it heard and determined the proceeding contrary to the argument put by the Australian Human Rights Commission by the respondent in his second notice of contention filed last week. 

Finally, your Honours, we will deal more shortly with ground 2, analysing the relevant provisions and explaining why, in our submission, the present is a case of direct inconsistency within section 109 of the Constitution. 

Your Honours, as to the grounds in the respondent’s first notice of contention filed on 3 September and found at tab 10 of the appeal book we would propose, if we might, to deal with those matters in reply if and as may be necessary, having heard our learned friend Mr Merkel’s oral submissions on them.

We turn then, if we may, your Honours, to the first ground of appeal.  Especially in light of the multiplicity of written submissions before the Court and the divergence in their approach and content it is, if we may say, desirable to seek at the outset to identify with precision the questions which arise for this Court on ground 1. 

Stating it first at the level of some generality, the issue which the ground presents may be described as follows.  What approach is properly to be followed by a State tribunal exercising judicial power, which is not a court of a State, in determining whether the tribunal has jurisdiction to entertain a proceeding in which a federal claim or defence is raised by the parties?  Your Honours, we use in so saying, if we may, the shorthand expression “federal claim or defence” to mean a claim or defence, the subject matter of which is referred to or is of the nature identified in section 75 or section 76 of the Constitution.

As the Court is of course aware, that issue arises in circumstances where, at least as relevantly stated for present purposes, this Court’s decision in Burns v Corbett (2018) 265 CLR 304, at volume 5, tab 32 of the joint book of authorities, has established that such tribunals cannot exercise adjudicative authority in respect of the matters in those provisions of the Constitution.

However, your Honours, my statement a moment ago of the issue presented by ground 1 was in a sense a broad one.  Of course, for example, not all aspects of the required approach of a tribunal arise for consideration in this hearing.  My statement did not identify with specificity the particular questions for the Court’s determination – to seek to address with more specificity those matters – and given the reasoning of the Full Court and having regard to how the appeal is now framed by the submissions of the parties and interveners – we respectfully submit that within that broadly stated issue there are two particular questions which arise for decision by this Court.

The first, your Honours, which is necessitated by the reasoning – or precipitated by the reasoning of the Full Court – is this.  In order to determine whether it had jurisdiction – I am sorry, your Honours, I will rephrase that – in order to determine whether it has jurisdiction may or must a tribunal of the nature to which I referred earlier consider and conclude upon whether on its merits the instant federal claim or defence would succeed or fail.

Now, pausing there, unless the answer to that question is in the affirmative, the Full Court erred, for, as your Honours are aware, in its judgment, the Tribunal should have assessed our client’s federal defence on its merits.  As your Honours know from the written submissions, we say, as does the Commonwealth and as do all States other than Western Australia who are intervening, this particular question is to be answered in the negative, and thus the Full Court’s approach was erroneous.  Indeed, with all respect, your Honours, we submit that there can be no doubt of that.

We turn then, your Honours, to the second particular question which we would articulate as arising for decision under ground 1.  It presupposes that the first question is indeed to be answered in the negative.  The question is this, if your Honours please.  What test is to be applied to identify the…..in which, although a federal claim or defence is raised on the face of the proceeding, it is properly to be concluded that the proceeding does not involve a matter within section 75, or section 76, of the Constitution.

Now, your Honours, in our respectful submission, so far as concerns ground 1, that question is the real substance of the appeal in light of the various submissions that your Honours have received in writing.  This Court has not previously addressed the question directly and in detail and how it ought be resolved is not settled. 

Self‑evidently, your Honours, the question is of real importance, not just in respect of State Tribunals after Burns v Corbett, but also for proceedings in Federal Court and it will be part of our submissions, your Honours, on the proper test that this Court might adopt, that full account be given, not just to the Tribunal ramifications, but to how the test will play out in the Federal Courts.

KIEFEL CJ:   Mr Batt, the Full Court in this case did not follow the test propounded by the respondent and some of the interveners in this case.  The Full Court applied the test, whether or not the matter was colourable and then proceeded to determine whether the defence was misconceived.  That is some distance from the tests which are propounded by the respondent and some of the interveners here.  Should this Court determine that wider question of what the test is, or just determine whether the Full Court was wrong in the approach it took?

MR BATT: Your Honour, this Court ought and must determine first whether the Full Court in its approach was in error, and I have addressed in overview on that point. Having concluded that it was in error, all that your Honours need to do to determine that whatever be the test, colourability or something further, here the instant federal defence, the defence under section 109, was on any view not such as to fall within the ambit of that test.

In other words, your Honours may determine it to be desirable to settle upon the precise test to be adopted, but to resolve this matter all that the Court needs to do is identify the error in the Full Court’s approach which turned on an assessment of merits per se and then take the further step of forming the view that whatever be the precise verbiage to articulate the test where a federal defence or claim which is pleaded is so lacking in substance as not to form any part of the real controversy that the current defence, the section 109 defence, could not, on any view, be said to have fallen within the ambit of that test, and that would resolve the matter.

So, I suppose, your Honour, when I say that the second question arises on the court’s decision I should not probably have said that the submissions of the interveners, and in a sense our written submissions, seek to have the Court determine that question in the course of resolution of the matter, but your Honours may not need to go that far. 

Indeed, I was just about to come, your Honour the Chief Justice, to ‑ and I will still do so – but to make the submission that whatever test be adopted under that second particular question if this Court answers it, whether the colourability alone test which we espouse all the way to the widest of the tests now proffered, which is that constructed by our learned friend, Mr Merkel, no reasonable prospect of success, whichever of those tests be adopted, in our submission, it is abundantly claimed that in this matter the section 109 defence would not be caught by that test. That is to say, on any view the section 109 defence raised a matter within section 75, or more properly stated section 76(i) and (ii), and that is enough.

So, your Honours, we seek to assist the Court today by formulating and seeking to justify what we would, having analysed the matter, consider as counsel to be the proper test, but in a sense our clients’ interests do not need us to go that far.  We do so to seek to assist the Court because on any approach proffered by the parties, even that of the respondents, we say it would be clear that ground 1 ought be upheld.

So, your Honour the Chief Justice, if I return to my attempt to bring these issues to some…..overview, as your Honours know our clients’ position has always been, and it remains, that where a federal claim or defence is raised, pleaded or otherwise raised, the entirety of the matter is in federal jurisdiction save only if the claim or defence is colourable.  As we understand it, the Attorney‑General for New South Wales submits to the same effect.

We make that submission, your Honours, having regard to several principles of federal jurisdiction, dicta of this Court, established Federal Court authority and consideration of underlying principle.

EDELMAN J:   Mr Batt, stated in those bald terms the proposition might be too broad, might it not?  So if, for example, there was a matter that was potentially within federal jurisdiction because what was raised was, say, an issue of diversity between the parties, would it not be open for the Tribunal to, even on your approach, determine for itself on the merits whether or not the defendant was a resident of a different State, assuming that matter to be disputed, and it might even be raised as a defence but it is not a matter that is in dispute inter partes, so to speak, but rather a dispute about the jurisdiction of the Tribunal.

MR BATT:   Yes, I follow, if I may say, your Honour, and indeed early this morning I turned my mind to this very question because it is true the test or the question as we have formulated it really was prompted by subject matter claims.  Your Honour hypothesises a different source of jurisdiction, diversity jurisdiction.

But, your Honour, we would still submit that the test we articulate is apt to be applied if, for example, the only claim – I will go back if I may – contemplate a proceeding between two persons within the same jurisdiction.  One of those persons then brings in another person who is resident in a different State.  If the claim under which that occurs is colourable then it may be that the court would properly conclude, or the relevant tribunal, that jurisdiction is not engaged because there is no controversy between those parties within one of the heads of section 76.

But having said that, your Honour, we do accept that, as articulated by us a few moments ago, the question we have sought to propound to focus the inquiry and submissions we would make was precipitated by a matter that turns on subject matter jurisdiction.

GORDON J:   Mr Batt, does that mean that there are really two questions that you have – and they are what is the test and if it is colourability, what does “colourability” mean?

MR BATT:   Your Honour, we would submit that the meaning and content of “colourability” is well established in the authorities and not in dispute. As your Honour Justice Gordon would have seen, both in the Tribunal and the Full Court, there was no question that the section 109 defence is colourable. Perhaps if I could seek to put it this way ‑ ‑ ‑

GORDON J:   You mean is not colourable.

MR BATT:   I am sorry, yes, thank you, your Honour.  So, for the purposes of our appeal – our client’s appeal on ground 1 – we need go no further than to persuade your Honours that the Full Court erred in adopting an approach that turns on assessment of the merits of the claimed federal defence and taking the further step to persuade your Honours that whatever be the ambit of the narrow test that might filter the rare case where despite a pleading of a federal matter in truth there is no such controversy, in the present case the test would not have been satisfied.

We say, your Honour Justice Gordon, that that is evidently so if colourability is the test. But we say, too, that even if this Court ventured into the matter and determined to adopt the test which included a further element – whether that be the Commonwealth’s “so clearly untenable that it could not possibly succeed” test – or going down the spectrum of Queensland’s real and substantial test to the widest proffered, which is our learned friend Mr Merkel’s “no reasonable prospect” – whichever of those tests be adopted, if they were – plainly, the section 109 defence in the present matter would not fall foul of it.

That is all we need, your Honour, with respect, to make out ground 1.  But, if the Court decided to venture into which precise form of verbiage should be adopted, then there are a number of considerations of authority and principle that we sought to marshal that might be thought to bear on that.

So, your Honours, you are faced – as your Honour the Chief Justice identified with your Honour’s first question – with a range of formulations of the test that might be adopted but with a circumstance where, whichever of them be adopted – if one be – we say, ground 1 would prevail.  So, in a sense, your Honours, that is an oddity – not, perhaps, the only oddity of this matter – but a striking one – that, even on the respondent’s position, we say it is inevitable that ground 1 would prevail.

As part of that, your Honours, we should make clear that the position of the respondent has moved.  At the special leave stage the attempt was to defend the reasoning of the Full Court.  That is, in substance, no longer the case despite some faint suggestions to the contrary and, instead, our learned friends for the respondent proffer the summary dismissal test of no reasonable prospects of success. 

Your Honours, against the background of those broad observations by which we seek to orientate the more detailed submissions, we would now take your Honours briefly to the points of claim and defence before the Tribunal and to its decision before turning to the judgment of the Full Court. 

Your Honours, the points of claim are found in the book of further material – which I trust your Honours have available – and commence – using the pagination in that book – at page 22. We do not seek to tarry here at all, your Honours. All we would seek to do is to note that, starting at page 24, your Honours will see paragraphs 17 through to 23 – your Honours do not need to their absorb their content, but just to appreciate that it is by these paragraphs that the complainants alleged direct and indirect disability discrimination in relation to access to Parliament Square in Hobart, contrary, it was said, to section 16 of the State Act.

Then your Honours will see at page 27 at about point 4 of the page the orders sought by the complainants and apropos of the issue sought to be raised by our learned friend, Mr Lenehan, your Honours will note that, in this case, the relief sought included declaratory and injunctive relief, such relief being within the heads of power available to the Tribunal under section 89 of the legislation. 

Then, your Honours, if we could pick up the points of defence, which commence overleaf at page 30, and again without traversing all the denials of the allegations in the points of claim, could we take your Honours please to page 36 where your Honours should pick up at about point 6, paragraph 21A.  Your Honours will see, particularly in subparagraph (a)(ii), (iii) and (iv) of that paragraph, 21A, pleadings in relation to the disability standards – to which standards we will return - and then particularly overleaf at (vi) and (vii) on page 37, the assertion of compliance with those standards. 

Off that platform the points of defence then proceed to paragraph 21A(b), at point 7 of the page, and after some three subparagraphs as to the scheme, your Honours will see saliently, at the top of the next page, page 38 of the book, two pleadings which do not have attached to them any paragraph designation, but form part of paragraph 21A(b).  First, it is pleaded that:

by complying with the DSP, there can be no discrimination under the -

State Act.  Albeit, a little elliptically, your Honours, that, in effect, is an allegation that compliance with the Commonwealth scheme of itself obviated a successful claim under the State legislation.  Now, whatever one might think about the soundness of that defence, we would say, if we had to, that of itself it raises a matter within section 76(ii).  But we do not really need to rest on that, your Honours, because you will then see immediately after that pleading, the lines:

if there is inconsistency between –

and I interpolate, the State and federal schemes:

then, to the extent of the inconsistency, the ADA is invalid pursuant to s 109 -

Now, although as a matter of form, starting with the conditional “if”, that is the allegation of inconsistency.  Nothing turns on the use of the conditional and outlines have at all times positively alleged – including in the Tribunal – a case of inconsistency.  Now, your Honours, those, while short in their compass, are the pleadings which give rise to the matters now before this Court. 

Having identified them for your Honours, might we take the Court to the Tribunal decision, which starts in the core appeal book – or as I will call it, if I may, the appeal book – at tab 1, page 6.  Again, we can be tolerably brief in addressing upon it, but we would respectfully consider it to be of use that it be brought - its relevant paragraphs and its course be brought to your Honours’ attention. 

So, your Honours we pick up the decision on the jurisdictional application at paragraph 34, which is found on page 14, using the numbers at the top right corner.  What your Honours will see is really a two‑stage process.  At paragraphs 34 and 39, your Honours will see the Tribunal sets out a succinct and, we say, pertinent and accurate recitation of the relevant principles and authorities.  Then, your Honours, the Tribunal’s conclusion founded upon the application – we say the proper application of those principles and authorities - is then seen commencing at paragraph 40 and running through to paragraph 45. 

We will not parse those 12 paragraphs, your Honours, but rather draw particular attention to these aspects of them.  First, the opening six lines of paragraph 40 which recite the raising of a federal defence, and your Honours will see the opinion expressed at the fourth to sixth lines there, we then draw attention, your Honours, to the last sentence in the last two lines of paragraph 41. 

Next, as to paragraph 42 – and mindful of your Honour Justice Gordon’s question - your Honours will see at the start of paragraph 42 the Tribunal identifies that with federal jurisdiction having been engaged it only remains to consider whether the federal issue was colourable and as the Tribunal says, and we say eminently correctly, in the last sentence of that paragraph:

The merits of the federal issues raised by the respondents not otherwise relevant.

Your Honours, we then direct attention to the first line of paragraph 42, the unqualified view that the federal matter raised by our clients was not colourable.  Then, if I can do it this way – and I apologise, your Honours – but lines 7 through to 11 of that paragraph where your Honours will see a sentence commencing:

The constitutional issue this raises is not one that on any view can be said to have been invoked to fabricate jurisdiction –

through to the end of the sentence four lines from the end of the page.  That is the Tribunal’s reasoning, and it is then summarised in paragraph 45 overleaf.  We submit, with respect, your Honours, that that reasoning was impeccable and the conclusion plainly correct. 

We would then, if the Court please, take your Honours to the judgment of the Full Court, still in the appeal book, now at tab 4 beginning at page 25.  If we may, we would take your Honours to the following paragraphs of the Chief Justice’s judgment, noting that at paragraph 29 at page 35 of the appeal book, her Honour Justice Wood relevantly agrees with his Honour the Chief Justice.  So, in his Honour’s judgment we commence, if we may please, at paragraph 4 at page 28 of the appeal book.  What your Honours will see here is a paragraph in which the Chief Justice seeks to summarise the Tribunal’s reasoning to which I just took this Court.  Your Honours will see in the chapeau the last line:

Essentially it –

the Tribunal:

reasoned as follows -

We would just seek, if we may, your Honours, to draw out these aspects of the dot points that then follow.  First, it may be noted, with respect, that his Honour the Chief Justice makes no mention of the important principles establishing that federal jurisdiction arises upon the making of a federal claim or defence and upon arising renders the whole of the matter in federal jurisdiction, regardless of the fate of the federal claim or defence.

Now, those matters, as your Honours have seen, were squarely appreciated, and articulated by the Tribunal, but with the greatest of respect to his Honour the Chief Justice, they find no place in his Honour’s recitation of the reasoning of the Tribunal and, indeed, no place in his Honour’s own reasoning which one sees in the ensuing parts of the judgment.

Perhaps more notably, if the Court please, in this paragraph, there is no mention of section 109. In particular, your Honours, we draw attention to the second and third bullet points which really seem – if we may say, with the greatest of respect – to proceed upon an apprehension – indeed a misapprehension – that it was the positive defence under section 34, the first of those two couplets to which I took the Court in the points of defence that gave rise to the federal issue.

Your Honours will see in the second bullet point squarely a reference to that provision – but not to section 109 – and then coupled with that, in the third bullet point, his Honour moves immediately to that part of section 76 – the second paragraph – relating to when a matter arises under a law of the Commonwealth – without reference to section 76(i) or its phraseology.

Now, we do not mean to make, your Honours, too much of this but it is almost as if, with respect, that his Honour the Chief Justice had not appreciated that the section 109 claim itself was a federal matter, the evaluation of which necessarily would involve the exercise of federal jurisdiction. Certainly, his Honour never articulates that – or addresses how any such evaluation might be permissible on established principle. If it is indeed fair to describe his Honour’s approach in that fashion, it may in part perhaps explain, with respect, what we would characterise as patent error, but it does not alter that error.

Your Honours, having sought to summarise the Tribunal’s approach, his Honour at the following paragraph – paragraph 5 on the next page of the appeal book – then summarises his own reasoning, having said that in his view the Tribunal have erred in its reasoning, and his Honour squarely says in the prefatory lines of that paragraph:

In summary, my reasons for that conclusion are as follows -

and, indeed, we may say this paragraph does summarise…..and in doing so, with respect, it clearly identifies the error of it. As the Court will see, his Honour’s reasoning was – as he identified it to be – first the view that there was on the merits of the question no section 109 inconsistency. That appears from the first three…..which address direct and indirect inconsistency. Then, your Honours will see, in the fourth bullet point – from that foundation, his Honour then states:

It follows –

that is to say, it follows from the absence – in his Honour’s view – of a valid section 109 defence:

that no defence based on s 34 of the DD Act is available in proceedings under the AD Act.

That is to say his Honour concludes upon the availability of the pleaded defence – his Honour rests his approach on a determination of the merits of the section 109 contention. Then, as one sees from the final two bullet points, his Honour reasons that because the defence is misconceived, on account of its perceived lack of merits:

the Tribunal was not called upon to exercise federal –

jurisdiction, and his Honour notes that the defence was not colourable, but that did not matter because of his view of its merits.  Now, as we will elaborate, we say that it is an approach, with respect, moored in error.

Between paragraphs 6 and 25, your Honours, one sees the Chief Justice’s analysis of the section 109 question on its merits, and we will not rehearse those paragraphs but rather, if we may, take your Honours straight to the concluding paragraphs of his Honour’s relatively brief judgment, which are to be found at appeal book page 34, at paragraph 26 through to 28. In effect, really, your Honours, we may say these paragraphs reiterate the reasoning that has been recited more shortly in paragraph 5, the summary paragraph. His Honour says:

Because there is no inconsistency between the provisions of the AD Act relied upon by the –

now respondent, the complainants:

and any Commonwealth law, a finding as to whether the design of Parliament Square complies with the Disability Standards is unnecessary.  A finding that the Disability Standards were complied with would not preclude the Tribunal from making findings of discrimination –

and then to pick up the paragraph at its conclusion, his Honour says at the end of that paragraph:

However the Tribunal is not bound to make findings as to whether the Disability Standards have been complied with, and is thus not required to exercise federal adjudicative authority.

It follows that the Tribunal erred –

Now, your Honours, I have identified I think that for relevant purposes Justice Wood agreed with the Chief Justice. One sees that at paragraph 29 overleaf, and there only remains in taking the Court to the judgment to make reference to the judgment of Justice Estcourt which commences at paragraph 40 on page 37, and if we may seek to deal with this briefly, with all respect to his Honour, his Honour reasons differently in respect of section 109 and, indeed, at some length, but for present purposes really may be treated as having proceeded in a cognate fashion to the other judges because as one sees at paragraphs 102 to 103 commencing at page 53 of the appeal book, the essence of his Honour’s basis for forming the same ultimate conclusion as the other members of the court is a view that the section 109 defence failed on its merits and that accordingly federal jurisdiction was not engaged.

In other words, his Honour, as the other two members of the Full Court, assesses the section 109 defence on its merits and holds that the Tribunal should have concluded it had jurisdiction for the reason that in his Honour’s view that defence ultimately ought not have prevailed.

Now, with respect, your Honours, we submit that in proceeding on a basis which involved determination of the merits of the federal defence and the forming of a conclusion that whether federal jurisdiction would be attracted in the matter was to be disposed of by the results of that merits assessment, the Full Court plainly erred. 

May I interpolate, your Honours, of course what the Full Court was doing was conducting a rehearing of the Tribunal decision and in effect identifying what it considered and held the Tribunal ought have done.  In other words, there can be no suggestion that the Full Court as itself a Chapter III court could determine the federal matter, hold that it was shorn away and send the matter back to the Tribunal devoid of it.  Rather, the nature of the Full Court’s judgment is to establish, purportedly, what the Tribunal ought have done itself and in adopting the course it did in that respect we say, with respect, that the Full Court erred.

In our submission, your Honours, established authority of this Court to which the Full Court made little, if any, reference compels the conclusion that its approach was fundamentally wrong.  To the contrary of that approach the merits of the federal defence were irrelevant to the question of jurisdiction.

Now, your Honours, we should pause to clarify that unqualified proposition I just propounded as to the entire irrelevance of the merits.  That unqualified statement is subject to any limited gloss that might arise from this Court adopting any test of the nature which I discussed in response to answers from the Chief Justice and Justice Gordon as to circumstances where despite the pleading of a federal claim or defence, in truth that pleaded claim or defence is to be properly considered to involve no real controversy and thereby not attract federal jurisdiction.

EDELMAN J:   Mr Batt, there may also be the limit – I think which you accepted at the start, although I am not sure – that your submissions are concerned with subject matter jurisdiction and not locality or personal jurisdiction.  There may be very different questions as to whether the Tribunal can finally resolve for itself questions of locality such as diversity or personal jurisdiction such as whether somebody is a consul or an officer of the Commonwealth.  But your submissions are only concerned with subject matter jurisdiction.

MR BATT:   Thank you, your Honour.  We accept that and, of course, in the circumstances presented by this matter we do not need to, and I ought not have, addressed in terms that extended quite so broadly.  We accept that proposition, if we may say, with respect, your Honour.  So, what I was seeking to do, your Honours, was, having boldly enunciated the proposition that the merits of the pleaded matter were entirely irrelevant, I just sought to attach some precision to that by acknowledging that, at the very narrowest degree – whether it is colourability alone or, for example, the test propounded by the Commonwealth, were it adopted – there may, in a sense, be a relevance of the merits because even that test formulated by the Commonwealth may, in a sense, be said to involve some very discrete and narrow reference to the merits to establish if it is met.

But, beyond that extremely limited compass, the merits of the pleaded defence were not relevant to the question of jurisdiction, in our respectful submission – and most certainly an approach which turned on deciding the merits of the very thing which the Tribunal could not determine in its jurisdiction is, on established principle, we say, wrong. 

Your Honours, given the detailed written submissions that have been provided to the Court by some 10 parties and interveners and the telling circumstance that in substance even the respondent’s written submissions no longer seek to defend the reasoning of a Full Court, we ought – and we hope that we can – be brief in the additional submissions we need to make…..and we would say only the following to seek to make good our case.

We do want to make clear, your Honours, that, in our submission, it is established principle of this Court which compels the conclusion that the Full Court erred.  Prompted in a way, if I may go back to it, to your Honour the Chief Justice’s question, to make good the proposition of error in the Full Court – dispositive error – we do not, with respect, need to make – or ask your Honours to make – new law to propound a new test.  We do want to be clear.  It is established authority of this Court that we look to to support the proposition that the Full Court’s approach was in error. 

May I seek to indicate why that is, your Honours.  Three preliminary points are not in dispute in that respect but bear mentioning.  First, there is no doubt that the Tribunal was able and was required to determine the question of its own jurisdiction.  Nothing in our submissions gainsays or detracts from that proposition. 

Secondly, your Honours, having regard to the terms of Chapter III and the decision of this Court in Burns v Corbett, the question for jurisdiction was whether entertaining the proceeding would involve the Tribunal exercising judicial power with respect to a matter identified in section 75 or section 76.  That is – and harking back to your Honour, Justice Edelman’s question – it was an inquiry turning on the subject matter of a controversy that comprised the matter.

The third anterior or the introductory proposition that does not bear dispute is that the pleaded section 109 defence was, on any view, a matter involving the interpretation of the Constitution within the meaning of section 76(i) of it and also was a defence which, relevantly understood, arose under the Constitution also within the meaning of that provision, that is to say, in subject matter the federal defence put forward was within the compass of that paragraph of the Constitution.

Now, your Honours, these matters – those preliminary matters accepted, in our submission, decided authority of the Court, of this Court concerning federal jurisdiction, dispositively establishes that the Tribunal’s task of resolving the jurisdictional question did not extend to considering the federal defence on its merits, but rather extended no further than identifying that the presence of that defence, and the principles to which we allude in advancing that proposition and the authorities that give rise to those settled principles, shortly stated, are these. 

First, it is the very raising of a federal claim or defence that gives rise to federal jurisdiction.  As to that proposition, perhaps does not even need me to do this, your Honours, but I will not for a moment seek to take your Honours to these cases but we rely, inter alia, on:  Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1136 - your Honours will find that at tab 29 of the book; Felton v Mulligan (1971) 124 CLR 367 at 373 to 374 - that is at tab 40; and Moorgate Tobacco v Philip Morris Ltd (1980) 145 CLR 457 at 476, which is at tab 53.

The second of the trifecta of propositions to which we hark is this.  If any part of the matter is within federal jurisdiction, the entirety of it is.  For that proposition we refer to Felton again at 373 and Moorgate at 472, 476 to 477, with the Chief Justice, Justice Barwick, agreeing at 467. The third of the propositions is, once a matter is within federal jurisdiction it remains so, whatever the fate of the federal claim or defence, whether that claim or defence fails, is disclaimed, is not determined or otherwise. There we refer to Moorgate again, the same pages, and R v Bevan; Ex parte Elias (1942) 66 CLR 452 at 466 in the judgment of Justice Starke and found at tab 59.

Your Honours, off the platform of the preliminary…..circulated, we submit that, taken together and leaving aside colourability or such other gloss as may be added to it, those principles compel the conclusion that the Full Court erred because the very raising of the section 109 defence necessitated the conclusion that the whole of the matter arose in federal jurisdiction and, as such, on the count of the authority in Burns v Corbett, at tab 32 of the book, the whole of it was beyond the Tribunal’s jurisdiction, and that was so regardless of the merits.  Indeed, it was not open to the Tribunal – it would not have been open to the Tribunal to purport to decide the merits. 

In short, your Honours, as his Honour Justice Leeming said in Boensch v Pascoe (2016) 311 FLR 101 at paragraph 20, to be found at tab 94 of the book of authorities:

It is basal that, where jurisdiction turns on the subject matter of a dispute –

as here it did:

what matters is the nature of the litigant’s claim, as opposed to its strength or otherwise.

Here, by contrast, on the Full Court’s approach, the Tribunal’s opinion on whether it had jurisdiction would be formed by deciding the very claims that it lacked jurisdiction to deal with.  Such circular reasoning is incompatible with and would substantially undermine the operation of the principle in Burns v Corbett.  So, your Honours, those are the submissions we would advance orally, in addition to our written submissions, on the question of error in the Full Court. 

STEWARD J:   Just before you move on, Mr Batt – I am sorry to interrupt you – how do you say one tests or determines whether a federal claim is colourable?

MR BATT:   Indeed, your Honour.  As the authorities in the Full Court of the Federal Court explicate, one does that by an assessment of – unhelpfully, if I can start with – all relevant circumstances, because they may turn on any given case.  For example, there may be – one conceives – some material before the court which evidences an actual improper purpose in the claimant or defendant raising the claim.  But, ordinarily, your Honour Justice Steward, one will do so – the court will do so – by reference to the claim or defence itself, and an assessment of whether it is to be concluded on the face of it, in the context of the proceeding more broadly, that it was – its presence is occasioned by an attempt to fabricate jurisdiction. 

Now, to pre‑empt my own submissions on the tests that this Court might adopt, an important part of those submissions, your Honour, is that that process itself may and, indeed, most commonly will, involve regard to the merits – and by that I really mean the complete lack of merit – of the instant pleading because, as some of the Full Court authorities say in terms, an inference will be drawn from a view on the face of the pleading or defence that it is so hopeless that it has no proper basis to be present, an inference stands to be drawn of improper purpose. 

So, your Honour, indirectly – oftentimes at least – the self‑evident lack of basis, and I mean severe lack of basis, the ex facie lack of basis of a pleading – will feed into a conclusion of colourability.  It is for that reason, your Honours, perhaps really ultimately, that we – Ms Watson and I – seeking to assist the Court, would suggest the test of colourability alone has the gloss on the lack of a merits assessment because we say, your Honour Justice Steward, that the colourability test thereby accommodates some regard, but not undue regard, indirectly, to the question of the merits of the defence or claim, without turning of its nature or operation on the merits or lack thereof directly per se. 

With the greatest of respect to the learned interveners and the tests that they propound, all of them, even the Commonwealth’s, in our respectful submission, are tests which by their nomenclature and in their undertaking, direct regard to an assessment directly of lack of merit.

EDELMAN J:   Mr Batt, colourability…..is ultimately premised in a conclusion of abuse of process, is it not?

MR BATT:   Your Honour, if we might, we would seek to express it slightly differently, without in substance disagreeing with your Honour.  It is a form of abuse.  But, your Honours, we submit that its role in this context has been given to it in at least the Full Court of the Federal Court, not on account of it being a form of abuse, but because by its nature it is apt to identify claims and defences which in truth give rise to no federal controversy. 

To put it differently, and I trust this is responsive to your Honour’s question, it would, in our respectful submission, be logically erroneous and, with respect, the respondent seeks to do this, to reason as follows.  Colourability is an abuse, therefore any other form of abuse will be, and should be, sufficient to form part of the test, for present purposes.  That, your Honour, is a logical syllogism. 

Colourability is an apt notion for the purposes of the test in question because where one ought properly conclude, including by reference indirectly to the lack of merit, that a claim is brought for the improper purpose – objectively considered – of establishing or fabricating jurisdiction, as a matter of human discourse, such a claim or defence, in truth, represents no part of a controversy between the parties. 

So, your Honour, we say it is an abuse, but the driving relevance of it is, pure and simple, such an inquiry assists one to identify cases that in truth embody no controversy, a matter in which no part of the controversy between the parties requiring to be quelled by the application of judicial power involves the matter which on its face is pleaded in the instant claim or defence and I was going to come back ‑ ‑ ‑ 

GORDON J:   Is that to say anything more than it is an objective assessment and, second, that questions like lacking in substance or phrases like that might be unhelpful?  I raise that for this sense, because if you look at Burgundy Royale they adopt language like “could not be said to be unarguable”.  In Johnson Tiles in the Federal Court they raised it – there had to be, by its very nature, denied its character as an element of any matter.  Do you accept that sort of objective assessment?

MR BATT:   Thank you.  Your Honour, we embrace those propositions, and they form part of our argument.  We say, contrary to what is put at one point in the respondent’s written submissions, colourability, although it is a purpose inquiry, is an objective conclusion and it does, as those dicta to which your Honour refers, state – it does embrace an important element of regard to the merits from which indirect inferences are drawn.

At the end of the day, your Honours, in submitting to seek to assist this Court that the adoption, if it occur, of any test of the nature under consideration ought be limited to colourability alone, a significant part of our analysis is that any test that looks further to the merits and turns on them is – if your Honours will pardon this language – a slippery slope, and unduly wide.  Conversely, colourability is tightly controlled by its fundamental nature as an objective purpose inquiry but does accommodate regard and sufficient but not excessive regard to the merits.

KIEFEL CJ:   Mr Batt, is it important to bear in mind that the question here is what the Tribunal is to consider, not a court, and that in particular may have relevance to the question of abuse of process?

MR BATT:   Yes, with the greatest of respect, we would agree, your Honour.  Of course, were the Court to adopt any formulation for what I am calling this test, it would be a test that fell to be applied both in the Federal Courts and in the tribunals of States that are not courts of a State but exercise judicial power, but we embrace the proposition, your Honour.  Indeed, part of our submissions would be that – take, for example, the formulation proffered by the Attorney‑General for Queensland, real and substantial.  Now, on some views that phraseology in truth means no more than colourable but, on its face, it would seem to extend further.

KIEFEL CJ:   That raises a question of whether or not this Court in this case should proceed to determine a rule to be applied for all purposes across the courts or whether it focuses upon the Tribunal in this case.

MR BATT:   Yes, your Honour, and we for our part in making these broader submissions are really seeking to address matters raised by the interveners in circumstances where our position has always been colourability alone, but as I sought to articulate earlier, for the purposes of disposition of this appeal and disposition in our clients’ favour we quite agree, your Honour, that it is not necessary for the Court to pronounce with that width.

What, perhaps not entirely responsively to your Honour the Chief Justice’s question, I was seeking to elicit is that because the test if it were to be formulated would fall to be applied in the courts and in State tribunals we would submit that it is important to pay regard to how it might fall to be applied in those tribunals, and for that reason, your Honour, I was alluding to the Queensland formulation.  One would have State tribunals asking themselves, I will have jurisdiction to hear this matter if the federal claim or defence is not real and substantial.  We say that is an invitation to – well, unpredictable results and a broad limitation of federal jurisdiction, a broad erosion of the operation of the negative implication arising from the Constitution which Burns v Corbett established.

Now, your Honours, with those questions having been asked of me and answered I trust, at least to some degree, it may be that I can move somewhat more quickly through what I had been about to come to, namely, what ought be the proper test, what test ought be adopted if one be adopted.  No doubt the Court will indicate if it does not seek to be addressed upon those matters on account of the consideration that it may not be necessary for them to be decided in order for this appeal to be disposed of. 

As I think, if I may say, would have emerged from the course of submission and question to date the underlying point of principle which gives rise to this question in circumstances where Burns v Corbett has been decided is that there will be some ostensible federal claims and defences which, although raised on a face of the proceeding, as a matter of substance do not, in truth, represent any true controversy between the parties which requires to be quelled by the application of judicial power and, as such, do not, by their presence, render the matter in federal jurisdiction. 

I used the phrase earlier, “as a matter of human discourse” – substantively analysing the matter, some claims really on their face though they may lead to one effect, do not, in truth, give rise to a federal claim or defence.  

Your Honours, as I think has been established or identified rather, all parties and interveners accept that that will be the case where the federal claim or defence is colourable.  There is no opposition to the deployment of that notion as articulated and elucidated in the authorities.  The question – and, perhaps it is not a question that your Honours will feel necessary to decide – but the question, if it be entertained, is whether colourability adequately identifies the relevant class of cases or whether this Court will recognise any additional category where the same conclusion is to be reached and, if so, how that category ought be described.

Perhaps it is apparent, but I should note in any event for completeness that in this regard we are not addressing claims and defences that are so entirely disparate as not properly to be seen to be part of the matter.  That is a separate inquiry.  We are looking to the substance of the claims. 

What we would particularly seek to do – to the extent your Honours wish to be addressed upon these issues – is to deal with and to identify why, anything else aside, the “no reasonable prospect of success” formulation now landed upon by the respondent, is to be rejected. 

In doing so, your Honours, we should note that although at paragraph 7 of the respondent’s written submissions it is said that he adopts the submissions and the reasoning found in the written submissions of the Commonwealth at certain paragraphs – viz 13 to 22 - in fact the respondent’s position and his reasoning are quite different from and are incompatible with the content of those paragraphs of the Commonwealth’s submissions.  The respondent’s contention can in no way be reconciled with or said to amount to the same as that of the Commonwealth nor can it be said to be ostensibly supported by the same considerations.

So, your Honours, turning as briefly as we are able to to the submissions of the respondent favouring, or supporting the adoption of the “no reasonable prospect of success” test, we say these things.  First, on analysis, the written submissions of the respondent give no basis in authority or principle which supports the adoption of any such test and there is none.  To the contrary, for a number of reasons to which I will now come, the respondent’s construct is demonstrably unsound.

First – and, your Honours, we would submit decisively – the respondent’s formulation is by its nature fundamentally inappropriate for fulfilling the task at hand, that is, for identifying claims and defences which in truth represent no controversy.  Why is that?  The formulation is no reasonable prospect of success.  That does not mean no prospect.  It means some prospect but not any reasonable prospect. 

Your Honours, the “no reasonable prospect of success” formulation was considered in the context of summary dismissal – which is its provenance – by this Court in Spencer v Commonwealth (2010) 241 CLR 228, found in volume 11, tab 77 of the book of authorities. It was there made clear that the conclusion that a proceeding has no reasonable prospect of success does not require that the proceeding be said to be – or seem to be untenable or hopeless. One sees that at paragraph 24, in the judgment of Chief Justice French and Justice Gummow, and through paragraphs 53 to 60, in the judgment of Justices Hayne, Crennan, your Honour the Chief Justice, and Justice Bell.

Put another way, your Honours – as Spencer makes clear, particularly at paragraph 54 – the “no reasonable prospect of success” test turns on an assessment of prospects of success, not on certainty of outcome. At the level of English language – at the level of principle – a federal claim or defence that is not bound to fail and rather has some prospect – however unreasonable that might be thought to be – is a part of the instant controversy. It cannot be said to be so devoid of content that in truth it gives rise to no question in issue. That is our first point, and we say, really, enough.

But then we say this, if we may, your Honours.  The respondent materially in his submissions seeks to place reliance on the doctrine of abuse of process to support the adoption of his proposed test.  With respect, that ought be rejected.  I partially touched on this in answer to Justice Edelman’s question and I will shape my oral submissions at this juncture accordingly, but we say briefly these things, if your Honours please.  Abuse is not an apposite concept for present purposes.  As was said at paragraph 22 of the respondent’s own submissions:

abuse of process is always concerned ultimately with the protection of the court’s processes –

Picking up my response to Justice Edelman, we are not here concerned with that – albeit that it may not lack relevance – we are concerned with identifying the arising or otherwise of federal jurisdiction.

So, as a broad umbrella notion, we say abuse is not, of its nature, an all…..ought not be seen to be of relevance, rather colourability is relevant, albeit a species of abuse for the particular reason that I identified or sought to identify in answer to your Honour Justice Edelman’s question to me a little while ago.  Then, your Honours, we note this.  Paragraph ‑ ‑ ‑

EDELMAN J:   Mr Batt, just before you move on from that, why could it not be said that anything that amounts to an abuse of process, whether it is for a particular category of being unjustifiably vexatious or oppressive, or so on, is a matter which the court determines should not be adjudicated between the parties, because to do so would involve an abuse of its processes?

MR BATT:   Your Honour, taken in those terms, we would not cavil with the proposition, that is to say courts are always – all courts are in control of their processes, and that doctrine exists to prevent them being abused – to prevent matters coming before them – and being entertained by them – which by nature are abusive.

But, your Honour, what we would seek to say, with respect, is that that is not so much to bear upon the present question which is what is the proper articulation of the class of cases which, despite the presence of some federal pleading, do not in truth involve a controversy of that nature.  That, we would submit with respect, is one inquiry.

More broadly – relatedly, but distinctly, your Honour – would be the question of whether a matter is sufficiently an abuse that the Court should strike it out – or dismiss it for that reason.  So, yes, if a matter is an abuse, it is liable to be summarily dismissed or otherwise put out of the court’s purview, but that need not be for jurisdictional reasons. 

So your Honour, I was going in a way to elaborate some matters of tort from that question immediately.  But we would submit that, in summary terms, the doctrine of abuse is broad, it is open‑ended, it is developing, and to adopt such a broad approach would very substantially alter and widen the range of matters that might still be said to be within the jurisdiction of State tribunals, albeit that they involve a federal claim.  Now, it may be that nevertheless such matters will be dismissed as abuses but not, we would submit, on jurisdictional grounds.  I trust that is responsive to your Honour’s question?

STEWARD J:   Mr Batt, before you go on, just so that I understand, your test of colourability, does it necessarily require a conclusion about the objective purpose for why the claim has been put up, namely, to fabricate jurisdiction, or is it sufficient that it is objectively utterly hopeless, without any conclusion about purpose?

MR BATT:   The answer to your Honour is the former.  Colourability turns on a conclusion of the proscribed purpose and can only be said to be established when such conclusion is reached.  How one might reach that purpose is not foreclosed to a court but will commonly turn on indirect inferences drawn from an ex facie complete lack of merit, but there may be cases where the conclusion is drawn for other reasons. 

EDELMAN J:   So a person who the court is satisfied is genuinely and honestly raising a claim that is utterly hopeless and that is, say, a sovereign citizen claim that has been raised consistently by that person in a number of cases, but is not doing so for the purposes of fabricating jurisdiction, then that would preclude the exercise of authority by the tribunal?

MR BATT:   Your Honour, if the Court were of the view that – or the tribunal – that there was not objectively considered the proscribed purpose of an improper fabrication of jurisdiction, that would preclude a finding of colourability and thereby mean that jurisdiction in the tribunal was unavailable.  It might be said, your Honour – and we accept this very much – it might be said for the Commonwealth that a principal consideration in support of its propoundment is that there may be cases where colourability is not engaged because the court or tribunal for some…..on account of some material can conclude there is not improper purpose despite the lack of merit in the claim, and it might be said that that is a principal reason for adding more beyond colourability, for example, the limited formulation that the Commonwealth suggests. 

I was going to come to it, but I should say at this juncture, your Honours, we very much accept that the test for which the Commonwealth contends and Victoria…..is open to be adopted by your Honours.  We do not seek to submit overly strongly against it.  We would seek to do no more than to identify some considerations which may bear upon whether it ought be adopted and which we would perceptually submit militate ultimately in favour of colourability alone. 

But we very much accept there are bases in authority and principle and analysis that support the Commonwealth’s test and that it is open to your Honours of course to adopt it and, as we principally emphasise, if it be adopted, on any view, and as the Commonwealth itself explicitly says in its submissions, our clients would still succeed on ground 1.

What we do submit more firmly, more committedly, is that the respondent’s construct, whilst our clients would still succeed on it if it were adopted, the respondent’s construct is demonstrably unsound, in our respectful submission.  Your Honours, I see the time.  Would now be convenient?

KIEFEL CJ:   Yes, it would, Mr Batt, thank you.  The Court will adjourn.

AT 11:14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Batt.

MR BATT:   Thank you, your Honour.  To continue as briefly as possible with our treatment of the respondent’s suggested formulation, and to conclude on his attempted reliance on the doctrine of abuse of process, we note, your Honours, that in his own submissions at paragraph 20, the respondent avers that the scope of the abuse of process doctrine is not fixed, continues to develop and that how it is to be applied will vary over time, including in accordance with statutory modification. 

Your Honours, we agree that that is the case, but we submit that such a changing doctrine is singularly inappropriate to be used as a base upon which to fashion the test for determining the immutable question of when a federal matter arises. 

All other things apart, so far as concerns abuse of process, it is to be borne in mind the nature of the present matter and, contrary to paragraph 11 of our learned friend Mr Merkel’s written submissions which seeks to characterise generally matters which are palpably weak or misconceived as being abuses of process, we say that is too broad a brush but, in any event, would not be apt in the present case to pick up the circumstances of this matter.

The final proposition we advance in respect of the respondent’s formulation is this, if your Honours please.  The formulation of no reasonable prospects of success is, for present purposes, foreign in its provenance and would be deeply problematic in its operation, and we make these remarks in aid of that. 

First, as your Honours would of course have to mind, the formula proposed by the respondent is the modern test for summary dismissal which was in the federal sphere, for example, introduced into the Federal Court of Australia Act by section 31A only 16 or 17 years ago in 2005 and into the Federal Court Rules 2011 by rule 26.01(1). 

KIEFEL CJ:   Mr Solicitor, does one need to go any further than the Court said in Burgundy Royale itself, when talking about what was colourable, when it said that the matter might be unarguable? 

MR DONAGHUE:   Yes.  So, thank you, your Honour.  In the end, in my submission, the words that one uses – I accept there is a range of possible views about the words that one uses – “unarguable” – it captures the kind of idea that we have in mind.  For some reason that phrase in Burgundy Royale has not really been picked up and, in our submission, it is perhaps an interesting case study in the way that the law can develop in that that language, “unarguable” in Burgundy Royale, was picked up from a judgment of this Court in R v Cook; Ex parte Twigg, which we have also cited in paragraph 5 of our written outline, and there Justice Gibbs, with Justices Stephen, Mason and Wilson in agreement, was discussing the jurisdiction of this Court on a claim for prohibition and said the claim for prohibition had not been made colourably, and then went on to observe:

that claim cannot be said to have been unarguable, although I need express no opinion on its correctness.

So in this Court in Twigg Justice Gibbs for a majority of the Court seems to contemplate that in addition to colourability, you had an unarguability standard.  Burgundy Royale picks it up, expressly citing that same passage, but in the years since then, colourability and the subjective improper purpose has assumed significance and the unarguability has somewhat dropped away in the understanding of the profession as to how this limit works. 

One can go back to Hopper, which we have also cited, where Chief Justice Latham also used language that suggests that in addition to colourability there was an unarguability inquiry to be made there, Justice Starke in dissent even more strongly.  Mr Batt mentioned Justice Evatt who perhaps went the other way and said colourability was the only limit.  But certainly one can find within the authorities recognitions that really weak claims are not sufficient in order to properly enliven federal jurisdiction and one sees ‑ ‑ ‑

GORDON J:   Mr Solicitor, can I ask one question.  Do you accept that in Johnson Tiles that was the kind of concept that Justice French, as he then was, and Justice Beaumont were addressing when they were looking at it and describing it as by its very nature denying its character of having an element of a claim?

MR DONAGHUE:   Your Honour, I do not.  In my submission, in Johnson Tiles in paragraph 88 I think that his Honour, or their Honours, had in mind an even narrower class of case of the kind your Honour put to me in example before an argument that the Constitution does not exist, because I think the reason a claim like that of its very nature denies its character as an element of the controversy is a matter can hardly arise under the Constitution if there is no Constitution, so that the claim was ‑ ‑ ‑

GORDON J:   I think that is what I was putting to you.  So when you say it is unarguable, it seems as though it has been picked up in subsequent cases on a narrower basis, like the sovereign citizens, like the case where the Constitution has never been enacted, et cetera.

MR DONAGHUE:   Yes, indeed.  So that means ‑ ‑ ‑

GORDON J:   As an element – sorry, just to complete, so when we talk about colourability, to pick up the Chief Justice’s question, not only in Burgundy Royale do we have “unarguable”, but it has been explained and demonstrated in subsequent cases by reference to this narrower class of case which is, on its face - not give rise to a claim because of the very nature of the claim made.

MR DONAGHUE:   Yes, your Honour, but perhaps in that explanation the concept has been narrowed a little more than it should have been, because there may be claims that are not ‑ ‑ ‑

GORDON J:   Or a little narrower than you would like it to be.

MR DONAGHUE:   Well, in my submission, yes, your Honour. In my submission, as a matter of principle a little narrower than it should have been.  The reason that Johnson Tiles is an interesting case here is that in Johnson Tiles there was one federal claim, a section 52 claim which was struck out applying the General Steel test.  Then the Federal Court said, well, we still have accrued jurisdiction in relation to the matter, even though applying the General Steel test, the only federal claim had failed, so that Johnson Tiles is relied upon against us as a case that suggests that the strikeout‑type standard is not appropriate.

EDELMAN J:   Mr Solicitor, the very narrow approach does have the benefit, does it not, that it aligns with your submission about what the rationale of this limit is in relation to subjective improper purpose in that both the objective or the subjective approach are concerned with the court saying on its face or due to the motivations, there is no real controversy about this issue.  There is no dispute that the court needs to adjudicate upon, not even a really weak one.  It is so manifestly hopeless that the court does not need to adjudicate upon it.

MR DONAGHUE:   Yes, but it can say that, even though it has before it a person who earnestly believes that this is part of the dispute that they want to have agitated.  Really, all I was trying to put in answer to Justice Gordon is that that might be so in relation to claims that are internally self‑defeating such as that there is no constitution, but it might also be so in relation to other kinds of arguments that, for various reasons the Court can look at and say there is nothing to be said on the other side of this point.  There is nothing of substance to decide.

We would urge upon the Court the proposition that the moment that there is something that actually does call for a decision, then Burns v Corbett means that decision should be made by a court.  But it is at the level where there really is not enough that calls for a decision of that kind that we submit that the Court should recognise a limit other than colourability. 

It should not, in our submission, try to squeeze that objective inquiry into colourability because colourability has such a settled meaning now over 35 years that that is likely to be productive of confusion in the profession as a whole.  In our submission, it would be better to recognise that there is this objective cast.

Now, your Honours, can I say in relation to Johnson Tiles that, to the extent that it is – if it had been thought that Johnson Tiles was inconsistent with the point that we are making, we submit that your Honour should not follow it and we are fortified in making that submission by the way the story in Johnson Tiles ended, which was that there was an application for special leave from the judgment of the Full Court, which was granted by Chief Justice Gleeson, Justice Gummow and Justice Hayne.

Appearing on that application for special leave – and we have given your Honours the transcript in the supplementary bundle behind tab 1 – Mr Beach, as his Honour then was, made an argument a lot like the argument I am putting to your Honours now.  He said colourability is not the test, there is also an objective component to it.  Mr Burnside, resisting special leave, said no, no, colourability is the test, it is subjective in proper purpose only.  At the end of all of that, Chief Justice Gleeson said to Mr Burnside, well, assume we might be against you on this, what do you say about various undertakings to preserve the positions of the parties - and special leave was granted.

So, the question your Honours are facing now would have come up in that appeal.  What then happened was that the trial judge, Mr Merkel in his earlier manifestation, said, the High Court having granted special leave, there does now seem to be a real risk about the jurisdiction of the Federal Court in this matter – this was a case involving millions of dollars – huge legal resources were being spent on it.  So, the matter was ordered to be transferred to the Supreme Court of Victoria, where there would not be any doubt about jurisdiction, and that having happened, the High Court appeal was discontinued. 

So, we never found out the answer to the question, is colourability the only limit or is there this further objective matter.  But at least, back then, the correctness or otherwise of the approach that Justice French took as a member of the Federal Court was regarded as a live issue and, for reasons that I have sought to develop, we submit that it…..  I will not take your Honours ‑ ‑ ‑

GLEESON J:   Mr Donaghue, is one way of looking at this that the starting point is to look at what is alleged on the face of the claim – to see whether or not there is a controversy and, once there is a controversy you then look for whether there is a genuine controversy and that is where the question of colourability comes in, but then it is not necessary to ask a third question which is about tenability.

MR DONAGHUE:   Well, it might depend, your Honour, on what the question at the first step means as to whether there is a controversy or not.  It might be that that would pick up the same kinds of consideration.  But, in my submission, it is easy enough to ask the question and everybody understands what the question colourability means – if it is about whether you can show the jurisdiction has been fabricated.  But experience suggests that it is not often that people even make that allegation let alone establish it. 

It is easier, in my submission, to say, objectively, that an argument purporting to raise a federal claim is so bad that it does not really do so and that matters now in a way that it has not mattered before since the Burns v Corbett implication was recognised because it means that people raising really hopeless arguments might pose a real impediment to the capacity of State Tribunals to do their jobs. 

The Burns v Corbett implication – as a negative implication from Chapter III – is designed to make sure that only courts decide the kinds of issues that had been reserved exclusively to federal jurisdiction.  But the purpose of that implication does not require that manifestly hopeless arguments only be decided by courts.  So, it makes sense as a matter of principle, in our submission, to recognise some limit around tenability for the reasons that I have tried to capture.

The Court has – I will not take your Honours to them, I think, in light of the time – but the Court has needed to grapple with this issue in a related context in the 78B context where – as your Honours are well aware – not only do notices need to be given but the Court needs to adjourn when a matter arises under the Constitution in using the same language as is relevantly used in section 76(i), so, in our submission, the whole point of the scheme being to make sure that the Commonwealth and State Attorneys are alerted when a constitutional issue arises.

The test that determines whether a matter arises under 76(i) and the test that determines when 78B is engaged should, relevantly, be the same.  But in the context of 78B, the courts have recognised that there is a threshold based upon the objective strength or not of the argument.  Your Honour Justice Gageler in Re Culleton – which we have cited in the third bullet point under paragraph 5 – collected a number of the authorities in this area, including Justice French in Berbatis Holdings where his Honour had said there – in the 78B context – that the Court did not have a duty not to proceed no matter how trivial, unarguable, or concluded the point may be in some memorable language in ‑ ‑ ‑

GAGELER J:   Mr Solicitor, can I just something about section 78B?  The question that arises in relation to section 78B is whether a court, having jurisdiction, can proceed to exercise the jurisdiction immediately or has to wait until notices have been given?  That stream of authority to which you refer – at least on my understanding – is based on a purposive construction of section 78B in which the textual work done is not – the textual burden of the holdings lies in the word “involves” – “truly involves” or “genuinely involves” or “substantially involves” a matter arising under the Constitution rather than simply there being a matter arising under the Constitution.  So, there seem to me to be two distinctions.  One is section 78B is concerned with the exercise of jurisdiction and, two, there is a textual distinction in that it has this additional word.

MR DONAGHUE:   Yes – “involves” a matter arising under the Constitution.  Your Honour, I accept what your Honour says but we do submit that if the rationale for holding that a very bad argument does not require the Court to adjourn is that the raising of the very bad argument does not mean that the matter – with respect to which the Court is presently seized – involves a matter arising under the Constitution it must be because the point is sufficiently weak that it cannot properly be described as affecting the character of the matter so as to give it the character of a matter arising under the Constitution. 

If the argument was sufficient to mean that there was a matter arising under the Constitution, then the proceeding would involve a matter arising under the Constitution, and people should be told about it, in my submission.  So, while I do accept that that textual distinction can be drawn, it does – the points that your Honour has made, picking up Justice Toohey, I think, in one of the cases in Finlayson, said, well, a matter does not arise under the Constitution just because someone says it does.  There is separately from the claim, an evaluation of the substance of it in answering the question, does this matter arise under the Constitution or not, and the Court has been prepared to say, on numerous occasions, the argument is bad enough that it does not and, therefore, I can proceed anyway – usually then to immediately dismiss the claim that is being made. 

So, the Court is taking what is, in my submission, an understandable pragmatic approach that says, well, I do not need to adjourn this because I can tell that I am going to dismiss it because it is so weak that there is no substance to it so what is the point running up the cost of the parties and time by adjourning only to then reach the inevitable answer?  Those cases, I accept, are not squarely on point but as a matter of substance they involve a not dissimilar analysis to that that we have put forward. 

As Mr Batt has mentioned, I think, in his submissions, the authorities including Agtrack, amongst others, establish that the question of whether federal jurisdiction is engaged or not is one for objective assessment, and we submit that that having been recognised, it is quite consistent with all of the cases that I have mentioned for the Court to accept that, separately from the colourability limitations, there is a limit of the kind for which we contended. 

As I have sought to develop, we are not ultimately committed to the verbal formulation that we used to try to capture those tests.  We proffer “so clearly untenable” also, so clearly untenable that it cannot possibly succeed for the reasons that I have endeavoured to explain, and I do not think I need to take your Honours to Spencer in order to develop that.  Your Honours can see Spencer (2010) 241 CLR 118 in volume 11 at tab 77 if you wish to go to it.

Your Honours, can I, in the two or three minutes remaining, deal with our third and final points that I intend to make before handing over to Ms Gordon which – she will now need to be tomorrow – concerning the limits of the Tribunal’s role.  We have addressed this in writing at paragraphs 23 to 28 in terms that I do not seek to add to, and we also adopt the submissions that New South Wales have made from paragraphs 23 to 25 and 32 to 38. 

The only point that we would seek to add is in response to Western Australia at 41, 42 and 46, which is a submission to the effect that the Tribunal should have determined the merits of the inconsistency argument as part of the process of forming an opinion as to its own jurisdiction. 

The short point we make is that while we accept that the Tribunal is entitled, and perhaps obliged, to form an opinion as to the limits of its own jurisdiction, an opinion as to the merits of the inconsistency argument would only form part of that process if the limits of the Tribunal’s jurisdiction depended upon the answer to the substantive argument that had been raised, but they clearly do not because, for the reasons that Mr Batt has developed it is the raising of the federal issue that enlivens federal jurisdiction and so potentially enlivens the Burns Corbett implication, not the resolution of the substance of the federal issue. 

So all that the Tribunal can properly do in the course of forming an opinion as to the limits of its jurisdiction is form an opinion as to whether the federal argument has been raised, and in addition to the cases that Mr Batt cited, Palmer v Ayres is another example of that at paragraph 27.

EDELMAN J:   Mr Solicitor, that is a distinction between heads of jurisdiction that are concerned with subject matter and those that are concerned with locality or person?

MR DONAGHUE:   It is, your Honour.  I was skating over things quickly, but that is certainly so.  So that in the ADT Case, for example,

Commonwealth v ADT, it was the Commonwealth as a party that enlivened the issue.  It could be that.  It could be diversity, as it was in Burns v Corbett.  But all of my submissions about the raising of the issue and indeed about untenability are concerned with subject matter jurisdiction under 71 or 72 and do not go further than that.

But we do submit – and this is my last point – that the Court, having been clear in Burns v Corbett, particularly at paragraphs 45 to 47, that the implication identified there is part of the working out of the Boilermakers implication, that is, it is part of the negative implications to be derived from Chapter III, it would make no sense for the raising of a federal issue to be sufficient to engage federal jurisdiction, in a Federal Court, for example, but to have a different principle apply on the flipside to define the scope of the negative implication.  In other words, what is granted affirmatively by Chapter III must be the same as what is negatively extracted from the jurisdiction of a State tribunal and WA’s submission, in our respectful submission, does not grapple with that point.

Your Honours, unless the Court has any questions, those are the submissions that I sought to address, and Ms Gordon will deal with the inconsistency argument when it is convenient to your Honours for her to do so.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Court will now adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 FEBRUARY 2022